Findings Of Fact In June 1984, Clark Vargas applied for a permit with the Department of Environmental Regulation for activities in the waters of the state. The application stated that the proposed activity was to construct a soil road 700 feet long and constructed of 2,000 cubic yards of fill to be deposited landward of the mean high water line. The roadway proposed was to have Geotextile Fabric placed over it, and would have fifteen inch culverts for cross flow. The purpose of the road was to allow 8 property owners to have automobile access to their lots. Attached to the application was a copy of a larger engineering drawing of the project, reduced to letter size paper. The larger drawing C in evidence as Responder's Exhibit 1, and the original application is in evidence as Respondent's Exhibit 2. The drawing depicts the construction that is proposed, and in the notes states that the mean high water line is 1.1 feet above mean sea level. The drawing (Respondent's Exhibit 2) shows a number of elevation readings along the road. The elevation readings on the land upon which approximately one half of the road is to be located, the southerly portion closest to Julington Creek, and adjacent to lots 19 through 26, are all below the elevation of mean high water. The data as to the mean high water elevation for the note on the drawing was obtained by Mr. Vargas from the Corps of Engineers. The elevations on the road were the elevations measured by a survey caused to be conducted by Mr. Vargas starting from a U.S.G.S. benchmark three quarters of a mile away. The survey was conducted by a registered land surveyor. Mr. Vargas stated that the survey was not meant to be a survey to establish mean high water, and that it was intended to determine a price and plan for construction. In Mr. Vargas's professional opinion, the survey was not adequate to establish the mean high water line. Timothy J. Deuerling, an Environmental Supervisor I for the Northeast District, visited the site of the project in the summer of 1984. He saw water throughout the area. He developed the initial opinion that the project was landward of the mean high water line. When he returned to the office, he looked at the small attached drawing and decided that the project appeared to be mostly landward of the mean high water line. The elevations are very unclear on the reduced size version attached to the application. Mr. Deuerling's statement as to the mean high water line is contained in Respondent's Exhibit 4. It is the finding of the Hearing Officer that the drawing was so small and the elevations so unclear that Mr. Deuerling's opinion as to the mean high water line in Exhibit 4 is not reliable, and is rejected. Jeremy G. Tyler, Environmental Supervisor of the Dredge and Fill Section, North East District, said that the conclusions contained in the Intent to Deny and Final Order of Denial, Respondent's Exhibits 7 and 6, that one-third of the fill was to be placed waterward of the mean high water line, was based upon the data provided to DER by Mr. Vargas, Respondent's Exhibit 2. Mr. Tyler said that it is very hard to determine mean high water line by site inspection, and that he credited the survey as better evidence. It is she finding of the Hearing Officer that the location of the mean high water line has not been established by the evidence. This finding is not based upon the testimony of Mr. Vargas, however. Mr. Vargas did not present any evidence that the standard for mean high water, which was obtained from the Corps of Engineers, was inaccurate, and he did not present any evidence that the survey elevations on the drawing were inaccurate. There is good reason to believe that the proposed road in this case may be, at least with respect to the one half from lots 19 through 26, waterward of the mean high water line. The evidence shows there is an elevated ridge along the edge of the canal, that this ridge was caused by deposit of dredged material when the canal was dredged in the 1950's or 1960's, and that the ridge has eroded in places, and the water from the canal and Julington Creek floods much of the area from time to time through low places in the ridge. The engineering drawing, however, runs a series of elevation readings across only two places on the ridge, and in both cases there is at least one reading above mean high water level. Further, the only reading at a spot directly on the open water is at the southerly end of the proposed road, and it also is above mean high water. It is possible, therefore, that although portions of the road are below mean high water elevation, these portions may be completely surrounded by higher ground. It is also possible that the several low spots on the canal ridge bring the mean high water line to the road itself. On this record, it is not possible to conclude where the mean high water line is. The site of the proposed road and surrounding lots are located in a hardwood swamp associated with Julington Creek in Duval County. The land upon which the road would be built is heavily wooded. Julington Creek is Class III waters of the state. The land upon which the road is to be built is the landward extent of the waters of the state. All of the Petitioners stipulated at the hearing that the Department of Environmental Regulation has jurisdiction to require a permit for fill pursuant to Chapter 403, Florida Statutes. The proposed project would result in the placement of silica fill upon a strip of wetlands described above measuring 25' by 702.5', which is 17,562.5 square feet, plus four driveway pads to lots measuring 25' by 30', for an additional 3900 square feet, for a total of 20,562.5 square feet, which is 0.47 of an acre. (An acre is 43,560 square feet.) The sand of the roadway and driveway pads will not pollute the waters of the state. The sand of the road will not increase biological oxygen demand or nutrients. During construction, turbidity could be increased if high waters are experienced and the area is not properly stabilized, but turbidity could be monitored and controlled. The materials of the roadway further will not depress the oxygen levels in Julington Creek. The project originally proposed that seed and fertilizer be used to stabilize the banks of the road, and fertilizer would contribute to nutrients in the waters of the state, but Petitioners at the hearing gave reasonable assurances that seeding could be accomplished without fertilizer by using burlap and seed. The roadway itself will also not generate unlawful bacteria that could make its way to the waters of the state. The road will disturb the biological integrity of the organisms living in the soil beneath the roadway and driveway pads. The proposed project will permanently destroy 0.47 of an acre of the wetlands associated with Julington Creek. These and adjacent wetlands function as a natural kidney, cleansing the water of pollutants, in a continuous cycle. Wetlands contain soil and living organisms that, in balance, filter out pollutants, assimilate nutrients, and provide habitat for organisms. The silica road proposed by Petitioners will not perform these functions. Petitioners presented no evidence to rebut these findings, except to argue that the loss of wetland was insignificant and to argue that wetlands, at times, will also cause pollution. Petitioners gave no other reasonable assurances that the long-term effects of the road would not degrade water quality. The exchange of water, which results in the natural filtration and cleansing described above, occurs from waters coming from the uplands, from the wetlands, and from open waters such as Julington Creek. Julington Creek is tidal, and the testimony indicated that with significant regularity the wetlands associated with this proposed road were inundated with water. In a natural state, wetlands will experience dry conditions. During such periods, which are natural and cyclical, water will drain from the swamp and there can be a natural depression of oxygen levels in the open waters, increasing suspended solids. While these facts are true, Petitioners did not present evidence to show with particularity whether this had occurred or to what extent this had occurred with respect to the wetland area where the road is to be located, and did not show with particularity how removal of these wetlands by constructing this road would prevent natural degradation of the water in the future. Moreover, whether or not the natural filtration system of a wetland becomes less efficient due to natural cycles is not relevant in this case. Petitioners here do not propose to replace nature's cyclical inefficiencies with a better, manmade system, but propose, rather, to remove a significant portion of the only filter now operating, without replacement. The entire Julington Creek drainage basis is 30 or 40 square miles. The relevance of this figure was not established, since from the map which is Respondent's Exhibit 9 it is clear that the drainage basis of Julington Creek, with its associated wetlands, serves to filter pollutants from an equally large, if not larger, upland area. Petitioners argue that removal of 0.47 acre is insignificant if the entire area is 30 to 40 square miles, but from Respondent's Exhibit 9 it is evident that much of that other part of the wetland is not available to function as a filter for the waters currently filtered by the wetlands in the vicinity of the pro- posed roadway. The proposed road is near the conjunction of Julington and Durbin Creeks, and near the place where the open waters enlarge. The wetlands of the proposed road would be expected to serve the filtration function for those open waters and the uplands immediately above the wetlands, and not some other part of the 30 or 40 square miles. The land at the headwaters of Julington Creek is now being developed for multifamily housing and industrial uses, and the whole watershed of the Creek is being developed. The waters of Julington Creek have already been stressed in a general way by this development. Petitioners Vargas, Mrs. M. E McCullough, Dr. Robert L. Barksdale, and Mr. Steve Scecere, all testified at the hearing, and own, respectively, lots 22, 21, 19, and 24. All testified that they intend to build houses on their lots, but have not yet applied for permits. Since 1977, the Department of Environmental Regulation has consistently taken the position that deposit of fill on the wetlands which are the landward extent of Julington Creek will degrade the quality of the waters of the state, and have consistently acted to prohibit such fill. See Respondent's Exhibits 8, 10, and 11. The Department further has consistently told prospective buyers of this position with regard to these wetlands. Of particular relevance to this application, in 1977 the Respondent denied a fill permit to place 2,500 cubic yards of fill on lot 20 as depicted on Respondent's Exhibit 1. This lot is now owned by Debra H. Prevatt, and is contiguous to lot 19 owned by Petitioner, Dr. Robert L. Barksdale. The fill proposed in 1977 would have eliminated 20,000 square feet of wetlands, approximately the same as the proposed project in this case. Petitioner proposes the finding that the Corps of Engineers stands ready to issue their permit pending resolution of their application by the Department of Environmental Regulation. This finding is based solely upon the testimony of Mr. Vargas as to the intentions of unnamed officials in the Corps of Engineers, and as such, is hearsay. Therefore, absent direct evidence on the point, the proposed finding is rejected. Petitioners propose a finding that the permitting process progressed "without negative feedback" until objections were raised by adjacent property owners. This finding was not supported by any evidence other than the opinion of Mr. Vargas, and will be rejected as unsupported and possibly hearsay. It is also rejected as irrelevant since there was no evidence that the Respondent denied the permit for reasons other than those provided by statute and regulation. The Petitioners have paid taxes on their property, are of the opinion that they cannot build on their land if the permit is denied, and would be willing to sell their land to the state for a reasonable amount if the permit is denied. Respondent has not placed a monetary value on the wetlands which Petitioners propose to fill. If Petitioners proposed to build the road on pilings, elevated above the wetlands so that most of the wetlands would continue to function, the application would be approved.
Recommendation It is therefore recommended that the application for a dredge and fill permit to construct the road and driveway pads as proposed by Petitioners be DENIED. DONE and ORDERED this 1st day of March, 1985, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. 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 1st day of March, 1985. COPIES FURNISHED: Clark Vargas, P.E. President C. Vargas & Associates 8596 Arlington Expressway Jacksonville, Florida 32211 M. E McCullough 9139 Warwickshire Jacksonville, Florida 32217 Steve Scecere 9058 Kentism Court Jacksonville, Florida 32217 Dr. Robert L. Barksdale 2423 Acadie Jacksonville, Florida 32205 Ross Burnaman, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinke, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue is whether the City's applications for an individual stormwater permit and a noticed general environmental resource permit for Phase 1A of the proposed Hogtown Creek Greenway should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In these two cases, Respondent, City of Gainesville (City), seeks the issuance of a stormwater system management permit (stormwater permit) to construct a 2,000-foot long asphaltic trail/boardwalk, a parking facility and associated improvements for Phase 1A of the Hogtown Creek Greenway project in the north central portion of the City. That matter is docketed as Case No. 97-2845. The City also seeks the issuance of a noticed general environmental resource permit (NGP) to construct 481 square feet of piling supported structures over wetlands or surface waters for the same project. That matter has been assigned Case No. 97-2846. Respondent, St. Johns River Water Management District (District), is the regulatory agency charged with the responsibility of reviewing and approving the requested permits. Petitioner, Greenspace Preservation Association, Inc., is a not-for-profit Florida corporation primarily composed of persons who own real property adjacent to the route proposed by the City, as well as local environmental interests. Petitioners, Frank Ward, Sal Locascio, Frederick P. Peterkin, and Harold M. Stahmer, are individuals who own real property adjacent to the route proposed by the City for the Greenway. The parties have stipulated that Petitioners are substantially affected by the District's proposed action and thus have standing to initiate these cases. On March 28, 1997, the City filed applications for a stormwater permit and a NPG for Phase IA of the Hogtown Creek Greenway project. After conducting a review of the applications, including an on-site visit to the area, in May 1997, the District proposed to issue the requested permits. On June 9, 1997, Petitioners timely filed a Petition for Initiation of Formal Proceedings as to both intended actions. As amended and then refined by stipulation, Petitioners generally allege that, as to the stormwater permit, the City has failed to provide reasonable assurance that the project meets the permitting requirements of the District; the City has failed to provide reasonable assurance that the stormwater system will not cause violations of state water quality standards; the City has failed to provide reasonable asurance that the project satisfies the District's minimum required design features; and the City has failed to provide reasonable assurance that the stormwater system is capable of being effectively operated and maintained by the City. As to the NPG, Petitioners generally allege that the piling supported structure is not less than 1,000 square feet; the jurisdictional wetlands are greater than the area shown on the plans submitted by the City; the City has failed to provide reasonable assurance that the system will not significantly impede navigation; the City has failed to provide reasonable assurance that the system does not violate state water quality standards; the City has failed to provide reasonable assurance that the system does not impede the conveyance of a watercourse in a manner that would affect off-site flooding; the City has failed to provide reasonable assurance that the system will not cause drainage of wetlands; and the City failed to provide reasonable assurance that the system does not adversely impact aquatic or wetland dependent listed species. Respondents deny each of the allegations and aver that all requirements for issuance of the permits have been met. In addition, the City has requested attorney's fees and costs under Section 120.595(1)(b), Florida Statutes (Supp. 1996), on the theory that these actions were filed for an improper purpose. A General Description of the Project The Hogtown Creek Greenway is a long-term project that will eventually run from Northwest 39th Street southward some seven miles to the Kanapaha Lake/Haile Sink in southwest Gainesville. These cases involve only Phase 1A of that project, which extends approximately one-half mile. This phase consists of the construction of a 2,000-foot long asphaltic concrete trail/boardwalk, a timber bridge and boardwalk, a parking facility, and associated improvements. The trail will extend from the Loblolly Environmental Facility located at Northwest 34th Street and Northwest 5th Avenue, to the intersection of Northwest 8th Avenue and Northwest 31st Drive. The trail will have a typical width of ten feet. For the majority of its length, the trail will be constructed of asphaltic concrete overlying a limerock base, and it will generally lie at the existing grade and slope away from the creek. Besides the trail, additional work involves the repaving of Northwest 5th Avenue with the addition of a curb and gutter, the construction of an entrance driveway, paved and grassed parking areas, and sidewalks at the Loblolly Environmental Facility, and the widening and addition of a new turn lane and pedestrian crosswalk at the intersection of Northwest 8th Avenue and Northwest 31st Drive. The Stormwater Permit Generally The entire Phase IA project area lies within the Hogtown Creek 10-year floodplain. It also lies within the Hogtown Creek Hydrologic Basin, which basin includes approximately 21 square miles. The project area for the proposed stormwater permit is 4.42 acres. Water quality criteria Phase IA of the Greenway will not result in discharges into surface groundwater that cause or contribute to violations of state water quality standards. When a project meets the applicable design criteria under the District's stormwater rule, there is a presumption that the project will not cause a violation of state water quality standards. There are two dry retention basins associated with the project. Basin 1 is located at the cul-de-sac of Northwest 5th Avenue and will capture and retain the stormwater runoff from the new and reconstructed impervious areas at the Loblolly Facility. Basin 2 is located at the parking area and will capture and retain stormwater runoff at the existing building and proposed grass parking area. Under the stormwater rule, the presumptive criteria for retention basins require that the run-off percolate out of the basin bottom within 72 hours. The calculations performed by the City's engineer show that the two retention basins will recover within that timeframe. In making these calculations, the engineer used the appropriate percolation rate of ten inches per hour. Even using the worst case scenario with a safety factor of twenty and a percolation rate of one-half inch per hour, the two retention basins will still recover within 72 hours. The presumptive criteria for retention basins require that the basin store a volume equal to one inch of run-off over the drainage area or 1.25 inches of run-off over the impervious area plus one-half inch of run-off over the drainage area. The calculations performed by the City's engineer show that the two retention basins meet the District's volume requirements for retention systems. An applicant is not required to utilize the presumptive design criteria, but instead may use an alternative design if the applicant can show, based on calculations, tests, or other information, that the alternative design will not cause a violation of state water quality standards. As a general rule, the District applies its stormwater rule so that water quality treatment is not required for projects or portions of projects that do not increase pollutant loadings. This includes linear bicycle/pedestrian trails. The City's proposed trail will not be a source of pollutants. The City will install signs at both entrances to the trail to keep out motorized vehicles. Except for emergency and maintenance vehicles, motorized vehicles will not be permitted on the trail. The infrequent use by emergency or maintenance vehicles will not be sufficient to create water quality concerns. The construction of a treatment system to treat the stormwater from the trail would provide little benefit and would only serve to unnecessarily impact natural areas. Although treatment of the stormwater run-off from the trail portion of the project is not required under District rules, the run-off will receive treatment in the vegetated upland buffer adjacent to the trail. The District's proposed other condition number 3 will require the City to plant vegetation in unvegetated and disturbed areas in the buffer. This will reduce the likelihood of erosion or sedimentation problems in the area of the trail. Although disputed at hearing, it is found that the City's engineer used the appropriate Manning coefficient in the calculations regarding the buffer. Even without a vegetated buffer, run-off coming from the bicycle trail will not violate state water quality standards. The City will install appropriate erosion and sediment controls. These include siltation barriers along the entire length of both sides of the proposed trail prior to commencing construction. Such barriers will not allow silt or other material to flow through, over, or under them. The City will also place hay bales and any other silt fencing necessary to solve any erosion problem that may occur during construction. In addition, the permit will require an inspection and any necessary repairs to the siltation barriers at the end of each day of construction. Saturation of the limerock bed under the paved portion of the trail is not expected to cause a problem because heavy vehicles will not regularly use the trail. The trail portion of the project can be adequately maintained to avoid deterioration. Sensitive Karst Areas Basin criteria The two proposed dry retention basins for Phase 1A are located within the District's Sensitive Karst Areas Basin. They include all of the minimum design features required by the District to assure adequate treatment of the stormwater before it enters the Floridan aquifer and to preclude the formation of solution pipe sinkholes in the stormwater system. There will be a minimum of three feet of unconsolidated soil material between the surface of the limestone bedrock and the bottom and sides of the two retention basins. The appropriate mechanism for determining the depth of limestone is to do soil borings. The soil borings performed by the City show that there is at least three feet of unconsolidated material between the bottom of the basins and any limerock where the borings were taken. In other words, limestone would not be expected to be within three feet of the bottom of either basin. Based on the soil boring results, the seasonal high water table is at least six feet below ground level. The depth of the two retention basins will be less than ten feet. Indeed, the depth of the basins will be as shallow as possible and will have a horizontal bottom with no deep spots. To make the retention basins any larger would require clearing more land. A large shallow basin with a horizontal bottom results in a lower hydraulic head and therefore is less potential for a sinkhole to form. Before entering the basins, stormwater will sheet flow across pavement and into a grass swale, thereby providing some dispersion of the volume. Finally, the two retention basin side slopes will be vegetated. Special condition number 7 provides that if limestone is encountered during excavation of a basin, the City must over- excavate the basin and backfill with three feet of unconsolidated material below the bottom of the basin. Drainage and flood protection Contrary to Petitioners' assertions, the project will not adversely affect drainage or flood protection on surrounding properties. The trail will be constructed generally at existing grade. Because the trail will be constructed at existing grade, the net volume of fill necessary for Phase 1A is approximately zero. Therefore, there will not be a measurable increase in the amount of runoff leaving the site after construction, and the trail will not result in an increase in off-site discharges. District rules require that the proposed post- development peak rate of discharge from a site not exceed the pre-development peak rate of discharge for the mean annual storm only for projects that exceed fifty percent impervious surface. The proposed project has less than fifty percent impervious surface. Even though it is not required, the City has demonstrated that the post-development rate of discharge will not exceed the pre-development peak rate of discharge. Both basins will retain the entire mean annual storm so that the post-development rate of discharge is zero. Even during a 100-year storm event, the retention basins willl not discharge. Therefore, there will not be any increase in floodplain elevations during the 10, 25, or 100-year storm events from the proposed project. Operation and maintenance entity requirements The applicable requirements of Chapter 40C-42, Florida Administrative Code, regarding operation and maintenance, have been met by the applicant. The City proposes itself as the permanent operation and maintenance entity for the project. This is permissible under District regulations. The duration for the operation and maintenance phase of the permit is perpetual. The City has adequate resources and staff to maintain the phase 1A portion of the project. The public works department will maintain the stormwater management system out of the City's utility fund. The City provides periodic inspections of all of its stormwater systems. These inspections are paid for out of the collected stormwater fees. The City will also conduct periodic inspections of the project area, and the two retention basins will be easily accessed by maintenance vehicles. The City will be required to submit an as-built certification, signed and sealed by a professional engineer, once the project is constructed. Monthly inspections of the system must be conducted looking for any sinkholes or solution cavities that may be forming in the basins. If any are observed, the City is required to notify the District and repair the cavity or sinkhole. Once the system is constructed, the City will be required to submit an inspection report biannually notifying the District that the system is operating and functioning in accordance with the permitted design. If the system is not functioning properly, the applicant must remediate the system. The City will be required to maintain the two retention basins by mowing the side slopes, repairing any erosion on the side slopes, and removing sediment that accumulates in the basins. Mowing will be done at least six times per year. The City will stabilize the slopes and bottom areas of the basins to prevent erosion. The City has a regular maintenance schedule for stormwater facilities. The project will be included within the City's regular maintenance program. The City has budgeted approximately $80,000.00 for maintenance of the trail and vegetated buffer. Also, it has added new positions in its budget that will be used to maintain and manage the Greenway system. Finally, City staff will conduct daily inspections of the Phase 1A trail looking for problems with the vegetated buffer, erosion problems along the trail, and sediment and debris in the retention basin. If the inspections reveal any problems, the staff will take immediate action to correct them. The Noticed General Environmental Resource Permit Generally By this application, the City seeks to construct 481 square feet of piling supported structures over wetlands or surface waters. The proposed structures include a 265 square foot timber bridge over an un-vegetated flow channel, which connects a borrow area to Possum Creek, and a 216 square foot boardwalk over two small wetland areas located south of the flow channel. None of the pilings for the bridge or boardwalk will be in wetlands, and no construction will take place in Hogtown or Possum Creeks. The paved portion of the trail will not go through wetlands, and there will be no dredging or filling in wetlands. The receiving waters for the project are Hogtown and Possum Creeks. Both are Class III waters. Hogtown Creek originates in north central Gainesville and flows southwest to Kanapaha Lake/Haile Sink in southwest Gainesville. Possum Creek originates in northwest Gainesville and flows southeast to its confluence with Hogtown Creek south of the proposed bridge structure. Wetlands The total area of the proposed bridge and boardwalk over surface water or wetlands is approximately 481 square feet. The wetland delineation shown on the City's Exhibit 5A includes all of the areas in the project area considered to be wetlands under the state wetland delineation methodology. The United State Army Corps of Engineers' wetland line includes more wetlands than the District wetland line. The former wetland line was used to determine the area of boardwalk and bridge over wetlands. Even using this line, however, the total area of boardwalk over surface waters or wetlands is approximately 481 square feet and is therefore less than 1,000 square feet. Navigation The proposed system does not significantly impede navigation. Further, the structures will span a wetland area and an un-vegetated flow channel, both of which are non-navigable. In fact, the flow channel generally exhibits little or no flow except after periods of rainfall. Water quality The construction material that will be used for the bridge and boardwalk will not generate any pollutants. Morever, chemical cleaners will not be used on those structures. Silt fences will be used and vegetation will be planted in the vicinity of the bridge and boardwalk to prevent erosion and sedimentation problems. The amount of erosion from drip that comes off the boardwalk will be minimal. Therefore, the bridge and boardwalk will not cause a violation of state water quality standards. Off-site flooding The project will not impede conveyance of any stream, river, or other water course which would increase off-site flooding. The structures will completely span the wetland areas and flow channel, and no part of the structures, including the pilings, will lie within any water or wetland areas including the flow channel. There will be a span of 2.5 to 3 feet from the horizontal members of the bridge and boardwalk down to the ground surface which will allow water to pass through unobstructed. Further, there will not be any cross ties or horizontal obstructions on the lower portions of the boardwalk or bridge pilings. Further, due to the spacing of the pilings, the boardwalk and bridge will not trap sufficient sediment such as leaves to impede the conveyance of the flow channel. Therefore, conveyance through the flow channel will not be affected by the structures. Because the boardwalk and bridge are not over Hogtown or Possum Creeks, they will not cause any obstruction to the conveyance of the creeks. Aquatic and wetland dependent listed species The project will not adversely affect any aquatic or wetland dependent listed species. These species are defined by District rule as aquatic or wetland dependent species listed in Chapter 39-27, Florida Administrative Code, or 50 Code of Federal Regulations, Part 17. No such species are known to exist in the project area, and none are expected to exist in the location and habitat type of the project area. Therefore, contrary to Petitioners' assertions, there are no listed salamander, frog, turtle, or lizard species known to occur within the Hogtown Creek basin. Although it is possible that the box turtle may be found in the project area, it is not an aquatic or wetland dependent listed species. One baby American alligator (between two and three feet in length) was observed in the borrow pit area of the project on September 11, 1997. Except for this sighting, no other listed animal species have been observed in the project area. As to the alligator, the only area in which it could nest would be in the existing excavated borrow pit, and none of the proposed construction will take place in that area. More than likely, the alligator had walked into the area from Clear Lake, Kanapaha Prairie, or Lake Alice. The proposed structures will not affect the movement of the alligator nor its feeding habits. Drainage of wetlands Because the boardwalk and bridge are elevated structures over waters and wetlands, and the City has not proposed to construct ditches or other drainage systems, the proposed system will not cause drainage of the wetlands. Coral/macro-marine algae/grassbeds The proposed system is not located in, on, or over coral communities, macro/marine algae, or a submerged grassbed community. D. Were the Petitions Filed for an Improper Purpose? Prior to the filing of their petitions, Petitioners did not consult with experts, and they prepared no scientific investigations. Their experts were not retained until just prior to hearing. Petitioners are citizens who have genuine concerns with the project. They are mainly longtime residents of the area who fear that the Greenway will not be properly maintained by the City; it will increase flooding in the area; it will cause water quality violations; and it will attract thousands of persons who will have unimpeded access to the back yards of nearby residents. Although these concerns were either not substantiated at hearing or are irrelevant to District permitting criteria, they were nonetheless filed in good faith and not for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the applications of the City of Gainesville and issuing the requested permits. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 Jennifer B. Springfield, Esquire Mary Jane Angelo, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602-1110
The Issue The issue to be resolved in this proceeding concerns whether the Board of Trustees should deny David Cook's request for a Butler Act Disclaimer, in consideration of Section 18- 21.019, Florida Administrative Code.
Findings Of Fact The Petitioner, David Cook, is in the commercial fishing business, operating his business in Fernandina Beach on the Amelia River. The Respondent, Trustees, is an agency of the State of Florida which holds title to sovereignty submerged lands on behalf of the people of the state, in accordance with Chapter 253, Florida Statutes. The Trustees is the agency responsible for issuance of disclaimers to formerly sovereignty submerged lands under the Butler Act and other similar riparian acts. The Department serves as staff to the Trustees. In November 1999 the Petitioner submitted an application to the Department for a disclaimer to certain submerged lands pursuant to Section 253.129, Florida Statutes and Rule 18-21.019, Florida Administrative Code. The application was on DEP Form 63-031(16) ("Form"). The above Rule adopts and incorporates that Form by reference as part of the Rule. The Butler Act transferred title to certain sovereignty submerged lands to the adjacent, upland, riparian owners if and when they filled, bulkheaded, or permanently improved the submerged lands. The Butler Act, enacted in 1921, was retroactive to 1856. It was repealed by implication in most Florida counties on May 29, 1951. A riparian upland owner who has acquired submerged lands under the Butler Act does not have to apply for disclaimer under the Trustees' Rule. The Act conveyed the lands, so the owner is not required to do anything. If an owner needed to prove up his title, he could also file a quiet title action. In order to avoid forcing owners to file such actions, the Trustees provided the Rule as an alternate mechanism to save the applicant time and expense involved in litigation. Kathy Miklus, a Planning Manager in the Title and Land Records Section of the Bureau of Survey and Mapping in the Division of State Lands of the Department, received and began reviewing the Petitioner's application. Upon reviewing the application she determined the application was incomplete. On December 23, 1999, Ms. Miklus wrote a letter to the Petitioner, advising him that the Trustees had placed a moratorium on applications for disclaimers involving "permanent improvements," but that staff was requesting the Trustees to lift that moratorium since the decision was handed down in the case of City of West Palm Beach v. Board of Trustees of the Internal Improvement Trust Fund, 746 So. 2d 1085 (Fla. 1999). Ms. Miklus also advised the Petitioner in this letter that he had not submitted a survey or satisfactory evidence of title to the riparian uplands, required by the Rule referenced above. The Petitioner did not respond to the letter. On April 6, 2000, Ms. Miklus faxed a copy of the December 23, 1999, letter to the Petitioner, with a cover sheet reminding him that his application was still incomplete, and that she still needed the items stated in her letter. The Petitioner called her in July of 2000 about the status of the application. On July 26, 2000, Ms. Miklus called him back and advised him for the third time that he needed to submit the survey and proof of upland ownership required by the Rule. On August 14, 2000, the Petitioner submitted some county tax information. On October 10, 2000, Ms. Miklus asked him again for a survey. On December 4, 2000, the Petitioner called and stated that he had filed a lawsuit a month earlier, and on January 18, 2001, the Petitioner called Ms. Miklus again. Ms. Miklus called him back and left a message to the effect that she still needed the survey. On January 23, 2001, Ms. Miklus called the Petitioner and told him that she had located his "survey" and a map. Ms. Miklus continued to receive calls from the Petitioner, even after she had turned processing of the case over to Jody Miller for further processing. Mr. Miller is an Engineer II in the Title and Land Records Section of the Bureau of Surveying and Mapping. He prepared drawings and field surveys in the private sector for two years, and subsequently worked for DEP for two years as an Engineering Technician IV and for another two years as an Engineer I. Mr. Miller has two years of study at Tallahassee Community College in civil engineering technology. He has also received additional training in minimum technical standards, surveying law, surveying mathematics, and "AutoCAD." He has reviewed surveys in his present position for 10 years. He was qualified and accepted as an expert in survey review. His area of responsibility is reviewing boundary surveys and mean high water line surveys for the State. Butler Act surveys generally involve both. Mr. Miller continued to try to collect the information required by the Rule from the Petitioner. The Petitioner's application was different and more complex than the normal Butler Act application because it was for a "permanent improvement" that no longer existed, rather than for existing land fill. This makes the area to be disclaimed more difficult to locate and precisely define as to "footprint" and/or boundaries. Mr. Miller reviewed the document that the Petitioner had submitted in January 2001 and determined that it was not a survey. Rather, it was a "sketch of description." Further, it did not give a legal description of the footprint of the structure that existed prior to May 29, 1951, nor did it show the mean high water line or the location of any structure built before 1951. Mr. Miller testified that there were other problems with the sketch of description as well. The Petitioner, according to the sketch of description, was attempting to claim a large area covering nearly all of the adjacent submerged lands in the marina, except for the submerged lands waterward of the railway. He did not merely limit his claim to the location, size and shape of the permanent improvements built under the Butler Act. Without the correct legal description of the area that was permanently improved under the Butler Act, Mr. Miller was unable to prepare a disclaimer for the Trustees' execution. Subsequently, Mr. Miller worked with the Petitioner, and two of the Petitioner's attorneys, Clinch Kavanaugh and Jeff Brown, and the Petitioner's surveyor, Mike Manzie, in order to help the Petitioner comply with the Rule. Mr. Miller also visited the site in Fernandina Beach. He conferred with the Petitioner's surveyor Mr. Manzie. Despite all this, the Petitioner never provided all of the items required by the Rule in order to issue a disclaimer. Because the Petitioner never provided the information required by Section 5 of the Form incorporated in the Rule, Mr. Miller recommended denial of the application to his supervisor, Scott Woolam. Mr. Woolam is a Professional Land Surveyor Manager with the Department who supervises the Title and Land Record Section and the Management Survey Section of the Bureau of Survey and Mapping. He holds a bachelor of science degree in land surveying. He has taken additional courses in legal principles, wetlands, and title and has instructed seminars in his field dealing with the statute and rule at issue here, as well as other sovereignty land issues. Mr. Woolam is published in his field. He was qualified and accepted as an expert in surveying and mapping. The Petitioner's application was pending during the Trustees' moratorium on "permanent improvement" disclaimers. However, the moratorium was lifted prior to the time the Petitioner's application was denied. Meanwhile, the Department continued to process the application. The Department's counsel advised Mr. Woolam that the Petitioner had filed lawsuit in the local circuit court during the pendency of his application and Mr. Woolam was told not to communicate directly with the Petitioner without counsel being present. Meetings were held with counsel present to try to resolve the remaining issues. Mr. Woolam conferred with Ms. Miklus and Mr. Miller about the status of the application. They came to a consensus opinion that the Petitioner had not complied with the requirements of Section 5 of the Form and Rule. The sketch of description provided in January 2001 did not identify the mean high water line, did not locate the permanent improvements prior to 1951, and did not explain the methodology used to support the applicant's description of the entire pre-empted area. These items are required by paragraph 5 of the Form. Mr. Woolam discussed the application with Terry Wilkinson, his supervisor, and prepared a letter recommending denial for Mr. Wilkinson's signature. Terry Wilkinson has been with the Department in the Bureau of Surveying and Mapping for 18 years. He spent the last 16 years as Bureau Chief. He is a professional land surveyor and before his employment with the Department worked in the private sector performing coastal surveys, guaging of tides and mean high water line surveys. He also directed field work for surveys. In his present position, he oversees a bureau that reviews surveys, prepares surveys, administers Chapter 177, Part II, Florida Statutes, which provides that the Department shall approve and assist with all mean high water line surveys, and he determines ordinary high water lines and makes title determinations on behalf of the Trustees. Additionally, he has taught seminars on the foregoing subjects and has received awards in his fields. He was qualified and accepted as an expert in surveying and mapping and in determining title to public lands within the scope of Chapter 253, Florida Statutes. One of Mr. Wilkinson's job duties is to administer the Rule that governs Butler Act disclaimers. Mr. Wilkinson conferred with Mr. Woolam about the proposed denial of the Petitioner's application and agreed that the application did not comply with the Rule because it was incomplete. On July 16, 2002, Mr. Wilkinson issued a letter notifying the Petitioner that his application was denied. The July 16, 2002, denial was based on the fact that the Petitioner's application did not have a legal description of the areas for which the disclaimer was requested, nor a survey showing the pre-1951 improvements and their relations to the current facility. The July 16, 2002, denial letter also indicated that the information lacking from the application had been requested by written communication dated December 23, 1999 and April 6, 2000, and in verbal conversations with the Petitioner and his counsel. In March 2003, after receiving instructions from Mr. Miller, the Petitioner submitted a survey prepared by Mr. Manzie. Although the Manzie survey was offered by the Petitioner at the time of hearing, it was not admitted into evidence. Even had it been admitted into evidence it still did not comply with Section 5, of the Form. Mr. Miller reviewed the March 2003 survey and found a number of technical errors in it. It did not have a true mean high water line, as required by the rule, the disclaimer area was expressed in two legal descriptions instead of one; one of the survey calls was reversed and the areas showed incorrect calculations. The new survey had one substantial error in that it did not show the "footprint" of the improvement that existed prior to May 29, 1951. It was not tied to any type of lots, blocks or streets, and it did not show the saw-tooth docking structure that appears in most of the Petitioner's photographic and other evidence. Therefore, even if it had been admissible, it would still be deemed incomplete under the rule. The Department acknowledges that the Petitioner may own some of the submerged lands pursuant to the Butler Act because permanent improvements existed on them prior to 1951. However, the Petitioner has not provided sufficient proof of where the permanent improvements lie on the ground in order to issue a disclaimer. The Petitioner states that he owns uplands in Fernandina Beach, Nassau County, on the Amelia River in Section 17, Township 3 North, Range 28 East. He presented numerous deeds which were accepted into evidence. The first deed is a patent from the United States to Florida dated July 9, 1891. Although part of it is illegible it appears to include unsurveyed parts of the land claimed by the Petitioner. The second deed, Trustees Deed No. 14,536, dated December 31, 1891, apparently conveys some of the same unsurveyed lands to Samuel A. Swann. Another Trustees Deed No. 14,537, dated the same day, deeds more lands in Petitioner's area to Samuel Swann, Trustee. Trustees Deeds No. 13,490 and 13,491 dated September 13, 1886, apparently provide railroad right-of-way from Fernandina to Cedar Key to the Florida Railroad Company. The Petitioner also presented four deeds that appear to be from Fernandina Dock and Realty Co., to Nassau Wharf Company, J.H.P. Merrow, and John R. Hardee, respectively. The Petitioner submitted a Trustees Disclaimer No. 23141, dated July 20, 1962, to the City of Fernandina Beach, which states "[t]he disclaimer is needed by the city to clear question of title." Neither the disclaimer nor any of its attachments shows that it was a Butler Act Disclaimer. The Murphy Act Deed from the Trustees, No. 199, to the Hardee, Trustees appears to be a portion of one of the "water lots" that the Petitioner claims to own. The final deed is from Samuel A. Swann to the Fernandina Dock and Realty Company, recorded January 18, 1902. None of these deeds appears to convey title to the Petitioner nor has he established any chain of title from any of the grantees to himself. In any event, however, this forum may not opine on issues of title to real property which is a matter reserved for the Circuit Courts of Florida. The Petitioner also presented seven color photographs, referred to at hearing as the "modern" photographs which were admitted into evidence. Certain other historic black and white photographs that were offered by the Petitioner were not admitted into evidence. The modern photographs all show various structures and/or pilings located on the submerged lands adjacent to the uplands the Petitioner states that he owns. The photographs are not to scale, and none of them were taken directly overhead, so measurements cannot ascertain the size of any structure that was there. Additionally, they had no verified dates, and the Petitioner admits that none of them were taken prior to May 29, 1951. The Petitioner identifies a number of remnants which may have been pilings. They are of unknown origin and age and their significance was not shown. Further, there was no showing that conditions in the photographs also prevailed 52 years ago. The Petitioner is not a surveyor and chose not to have his surveyor testify. There is no testimony about the size of the structure. The Petitioner's Exhibit 8, Sanborn maps, was not admitted into evidence. Two aerial photographs, taken by the Florida Department of Transportation, dated 1943 and 1953, were admitted into evidence. The 1953 aerial photograph is not relevant because it was taken after the Butler Act was repealed. The 1943 photographs reveal that there was a long, narrow structure, perhaps a walkway, extending to a small terminal platform that bears no resemblance to the "Area for Disclaimer" identified in the Petition. The photograph merely shows that some structure was present in 1943. The Petitioner's United States Army, Corps of Engineers maps show a "Nassau Wharf Co." structure, that he apparently claims, which is a saw-toothed docking structure that is not clearly located in relation to the Petitioner's modern- day facility. The saw-toothed docking structure was an antiquated dock design to allow for the efficient mooring of sailing ships with lengthy bow sprits which would jut over the wharf area. Depths shown on the maps are not helpful in locating the pre- 1951 structure. A Petitioner witness, Mr. Knetsch, testified that the primary purpose of the Army Corps maps was navigation, not locating structures. The saw-tooth wharf configuration is not substantiated by the 1943 photograph which shows a narrow structure with a small terminus, or the 1933 Coast and Geodetic Survey, which shows a structure similar to the 1943 structure. The saw-toothed dock was evidently removed before that time. None of the evidence admitted shows that the Petitioner conformed to the requirements of the Form in Section 5 of the Rule. Section 5.A.(1) requires a "[p]resent mean high water line surveyed and approved in accordance with Chapter 177, Part II, Florida Statutes. . ." The Sketch of Description provided in January 2001 is not a mean high water line survey and shows no approval by the Department. It shows "approximate mean high water line." Section 5.A.(3) requires "[t]raverse of fill [permanent improvement] showing location of the former mean high water line, with a land tie to an established accessible section, other U.S. Government Land Office Survey Corner, or other controlling corner[s]." The permanent improvement is not located, and no tie to any of the requisite corners is shown on the sketch of description. Section 5.A.(4) requires a "[s]tatement of methodology used to re-establish the pre-fill mean high water line (photo interpretation, historic surveys prepared prior to fill, etc.)." In relation to permanent improvements, this is interpreted to mean the methodology used to re-establish the footprint of the permanent improvement. No statement of methodology appears on the Sketch of Description. Section 5.C. requires a legal description of the filled [improved] parcel. The legal description in the Sketch of Description shows a large area of submerged lands, with no relation to the permanent improvement, which is unsupported by the evidence. Finally, Section 5.E. requires satisfactory evidence of title in the applicant to the riparian uplands to the mean high water line. The Petitioner did not submit any deed to the riparian uplands that would establish his ownership. The Department staff testified that the deed they reviewed showed that the conveyance of the uplands to the Petitioner from his father reserved a life estate in the father. While the Petitioner testified that his father had died in 1999, the rights of his mother to any remainder in the life estate were not established. Thus, the Petitioner failed to show that his application complied with the Rule.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund, of the State of Florida issue a Final Order dismissing the Petition of David Cook dated July 26, 2002. DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 1st day of August, 2003. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of the General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 David Cook Post Office Box 30 Fernandina Beach, Florida 32035-0030 Suzanne B. Brantley, Esquire Christine A. Guard, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether the Department should grant a permit to IMCF to mine and ultimately reclaim 145 acres of wetlands located primarily in Section 14, Township 31S, Range 23E, Polk County, Florida ("Section 14 Area") on the western edge of a larger wetlands system known as "Hookers Prairie."
Findings Of Fact Background and Procedural History On July 9, 1987, IMCF filed an application with the Department for a permit to mine phosphate rock from and then reclaim the Section 14 Area. The Section 14 Area is owned by IMCF. On December 2, 1987, in response to a determination of incompleteness issued by the Department, IMCF supplied additional information which supplemented and modified the original application. The application as augmented and modified was determined to be complete by the Department on December 7, 1987. Department representatives carried out onsite inspections of the Section 14 Area on September 22 and October 9, 14, and 19, 1987, and issued a written permit application appraisal. Based upon the information contained in the application and on the site visits, the Department determined to issue the requested permit to IMCF subject to certain draft permit conditions. The Department directed IMCF to publish notice of the Department's intent to issue the permit. The Department's notice of intent to issue was published in the Lakeland Ledger, a newspaper of general circulation in the location of the Section 14 Area on March 15, 1988. Petitioners objected to the Department's proposed issuance of the permit by filing their Petition to Intervene and Request for Formal Hearing with the Department on April 7, 1988. Petitioners have standing to intervene in this proceeding and participate as parties for the purpose of objecting to the issuance of the subject permit. Description of Proposed Mining Project The wetlands that make up the Section 14 Area are part of a larger 162 acre project area proposed to be mined and reclaimed by IMCF. This mining area is located to the south of the eastern portion of Bradley Junction, a small residential community. The Section 14 Area wetlands make up 131 acres of the overall project area. The remaining 31 acres of uplands involved in the proposed mining project are not subject to Department permitting requirements. IMCF has all necessary permits and approvals to gain access to the upland areas to carry out mining operations. These uplands areas are located primarily in the northernmost part of the project area directly abutting the location of certain residences and churches in eastern Bradley Junction. The jurisdictional wetlands in the Section 14 Area are located no closer than 450 feet from a residential structure in Bradley Junction. Most of the wetlands in the Section 14 Area are substantially farther away from the Bradley Junction residences. The initial step in the mining process will be to construct a ditch and berm system around the Section 14 Area. This ditch and berm system will effectively segregate the mining area from adjacent wetland areas that are to remain undisturbed. Approximately 99 acres of the Section 14 Area wetlands will actually be mined; the remaining 32 acres will be disturbed by the construction of the ditch and berm system. Following the construction of the ditch and berm, land clearing will take place. Once land clearing is completed, mining operations will commence. In phosphate mining operations, large, electrically-powered draglines are used. The dragline first removes and casts aside the "overburden" which is the earthen material that over lies the "matrix." The matrix is the geologic deposit that contains phosphate rock. The dragline extracts the matrix and places it into nearby pits where high- pressure waterguns are used to create a slurry of the matrix material. This slurry is then pumped to the beneficiation facility several miles distant from the mining operations where the matrix slurry is processed to extract the phosphate rock. The matrix is composed primarily of three major components: phosphate rock, sand, and clay. In the beneficiation process, the phosphate rock is separated from the other two components. Residual clays are then pumped to large settling areas where the clays are allowed to settle and consolidate prior to reclamation. No clay settling area is proposed to be located in the Section 14 Area. The sand "tailings" that are generated in the beneficiation process are pumped back to mined areas for use in reclamation programs. Sand tailings will be used in the reclamation proposed for the Section 14 Area. IMCF proposes to initially carry out ditching and berming activities in the Section 14 Area. The central and southern portion of the project area is planned to be mined during the period from July 1989 and June 1990. The dragline will then mine an area to the west outside of the project area. The dragline will return to mine the northern portion of the project area in May 1991. Actual mining operations in the northern portions of the Section 14 Area wetlands and the uplands near Bradley Junction residences will occur over approximately a seven-month period and the dragline will depart the area in December 1991. There are approximately 800,000 tons of phosphate rock underlying the Section 14 Area wetlands. After extraction and beneficiation, this rock will be used for the production of phosphate fertilizer or other phosphate-based products. Project Modifications IMCF has agreed to the following modifications to the Section 14 Area mining and reclamation project as originally proposed in July 1987: The southern boundary of the Section 14 Area has been moved to avoid encroachment on a small stream channel in the upper reaches of the South Prong of the Alafia River, the outlet from Hookers Prairie. The project has been modified to conform to setback requirements recently adopted by the Board of County Commissioners of Polk County. Under the revised setback requirements, the edge of a mine cut may come no closer than 100 feet from the IMCF property boundary or 250 feet from an occupied residence, whichever distance is greater. In response to concerns about noise and lights associated with mining operations, IMCF has agreed to restrict the hours of mining operations. Mining operations will not take place during the period from 11:00 p.m. to 7:00 a.m. when the dragline cab is located within 700 feet of a residence. In addition, mining operations will be suspended on Sundays during the period from 7:00 a.m. through 3:00 p.m. when a dragline cab is located within 700 feet of any place of worship in the Bradley Junction community. The Polk County Mining Ordinance requires that either a berm or a wire fence be constructed on the perimeter operations to limit unauthorized access. IMCF has agreed to construct both a berm and a solid wooden fence, at least six feet high, along the IMCF property boundaries adjacent to residences located in the Bradley Junction community. IMCF has agreed to expedite the reclamation of areas mined adjacent to residences in the Bradley Junction community. The area encompassing the first mine cut closest to the residences (a distance of 250 to 300 feet) will be recontoured and revegetated within 90 days following completion of mining in the area. The area encompassing the first two mine cuts (a distance of 500 to 600 feet) will be recontoured and revegetated within six (6) months following completion of mining in the area. Type, Nature and Function of Section 14 Area Wetlands The Section 14 Area is composed of approximately 127 acres of herbaceous (shrubby) wetlands and approximately 4 acres of young hardwood (forested) wetlands. Western Hookers Prairie, including the Section 14 Area, has been adversely impacted by land use activities over the last several decades. Parts of the area have been drained and cleared to accommodate agricultural uses. The resulting widely fluctuating water levels have induced the extensive growth of what the Department considers to be undesirable "nuisance species" such as cattails and primrose willow, in these areas. Other areas, especially in the southern portion of the Section 14 Area, contain some relatively diverse herbaceous wetland systems. The Section 14 Area also has been adversely impacted to some extent by emergency releases of phosphogypsum and acidic process wastewater generated by the chemical manufacture of phosphate-based fertilizer. Such spills occurred in the 1950s and 1960s and resulted in the deposition of high levels of phosphorous and fluoride in western Hookers Prairie. However, the Section 14 area is less affected than eastern parts of the Western Prairie due to a natural slight rise in elevation along the eastern edge of Section 14, causing a natural flow of water containing the contaminants generally south around Section 14. Wetland systems, in general, can perform certain valuable ecological functions. These functions include: nutrient retention/removal, sediment trapping, flood storage desynchronization, groundwater recharge, food chain support, wildlife habitat, and recreation. Certain wetland systems also serve a shoreline protective/wave dissipation function but that function is not relevant to herbaceous wetland systems like the Section 14 Area that are not adjacent to open water. Because of the nature of the Section 14 Area and the stresses previously imposed upon it, its ability to perform wetland functions has been reduced. The nutrient retention/removal function refers to the ability of the vegetation in wetland systems to remove excess nutrients from water. The Section 14 Area does not perform a significant nutrient retention/removal function. The available data indicate that waters leaving western Hookers Prairie at its outlet to the South Prong of the Alafia River contain more nutrients on balance than do waters entering the system. It is not uncommon for wetlands that are in headwaters of a water system to be net exporters of nutrients. In addition, in this particular area, the historical spills of phosphogypsum and acidic process wastewater have overloaded the sediments in the area with nutrients. The sediment trapping function refers to the ability of wetland systems to filter sediment (suspended particulate matter) from water as it travels through the wetland area. The Section 14 Area performs a reduced sediment trapping function. Although some of the water entering the Section 14 Area comes from Whiskey Store Creek to the north, some of the water entering Section 14 has already traveled relatively long distances through the rest of western Hookers Prairie so that most of the water entering the Section 14 Area does not contain high levels of sediments. As more and more parts are excised for phosphate mining, the importance of the sediment trapping function of the remaining portions, even Section 14, increases, at least until reclamation projects succeed. See "J. Cumulative Impact," below. The flood storage/desynchronization function refers to the ability of a wetland system to store rain water generated during storm events and then to release this water gradually, thus reducing the likelihood of downstream flooding. Hookers Prairie, as a whole, does serve a valuable flood storage/desynchronization function. The approximately 130 acres involved in the Section 14 project area only amount to three to four percent of the overall water storage capacity in the affected area. But the Hookers Prairie wetlands have an approximately two foot thick layer of peat that acts as a sponge to absorb water during inundation and slowly release the stored water over time. It could be misleading to compare the storage of wetland to other water storage acreage on an acre for acre basis. Again, as more and more parts of the Prairie are excised for mining, the importance of the remaining areas increases, at least until reclamation projects succeed. IMCF did not give reasonable assurances as to the cumulative impact of the loss of Section 14 and the other areas under permit on the water storage capacity of the catchment area. See "J. Cumulative Impact," below. The ground water recharge function of wetlands refers to those situations in which a wetland is connected to an underlying groundwater aquifer system in such a way that surface water flows into the wetland system and then down into the underlying aquifer system. The underlying aquifer system is thus "recharged" by the infusion of surface water through the wetland system. The Section 14 Area does not perform any significant groundwater recharge function. Hookers Prairie, including the Section 14 Area, is a topographic depression. Therefore, water can flow out of the uppermost aquifer system (known as the surficial aquifer) into the wetlands, but the reverse is not true. Furthermore, the water in the wetland area cannot move down into lower aquifer systems (such as the intermediate aquifer or the Floridian aquifer) because of the existence of geologic confining layers that underly the Section 14 Area and inhibit vertical groundwater flow. The food chain support function refers to the ability of a wetland to produce organisms or biological material that is used as food by other organisms either in the wetland itself or in surface water areas downstream of the wetland system. The Section 14 Area performs some food chain support functions. Food chain support can be performed in three ways. First, dissolved nutrients, such as phosphorous and nitrogen, can be released into the water. Because of the prior spills into Hookers Prairie, the area is already discharging nutrients in amounts that are normally considered to be high. The second mechanism for performing food chain support is the physical flushing of small aquatic organisms downstream to feed the fish or other larger aquatic organisms. Studies carried out by the United States Environmental Protection Agency indicate that the small organisms found in the downstream reaches of the South Prong of the Alafia River do not appear to be similar to those found at the point of discharge from Hookers Prairie. These data indicate that Hookers Prairie produces and releases this type of food chain support but that its direct impact does not extend significantly into the southern reaches of the South Prong of the Alafia River, as compared to the total production from other tributaries of the river. The third type of food chain support is the release of detrital material (partially decomposed vegetation). Detrital material generated in much of Hookers Prairie is likely to be retained in the Prairie because of the sediment/trapping filtration function discussed above in Finding No. 17(b). However, being adjacent to the outflow from the Prairie to the South Prong, Section 14 could be expected to deliver a larger share of detrital material than the portions of the Prairie further east. The Section 14 Area provides a wildlife habitat function although it does not appear to serve as diverse a group of wildlife as is served by the eastern portion of Hookers Prairie. The Section 14 Area is not utilized for recreational purposes. It is densely vegetated so that access by man is difficult. There are no open water areas that could be used for hunting or fishing. Mitigation IMCF proposes to mitigate the temporary loss of function caused by the mining of the Section 14 Area by reclaiming the area following the completion of mining operations. The first step in reclamation will be the pumping of sand tailings back into the project area to create a land surface at approximately the original grade. The previously moved overburden material will then be spread and recontoured. Stockpiled organic muck material will then be spread over the reclamation area to provide a nutrient source to support plant growth. Department representatives will review and approve the final contours to assure that they are similar to those found in the original natural environment. Following completion of the contouring, the portion of the project area that will be reclaimed as a wetland will be inundated with water and then revegetated with desirable wetland species. The reclamation of the Section 14 Area will be subject to extensive monitoring by IMCF. This monitoring will involve short- and long-term vegetation monitoring and water quality monitoring. The results of this monitoring will be submitted to the Department, and the project will not be released from regulatory scrutiny until certain success criteria are met. During the period of recontouring, revegetation, and monitoring, the berm around the Section 14 Area will remain in place to isolate the area from the adjacent Hookers Prairie system. Once the Department determines that the vegetation in the Section 14 Area has been successfully reestablished, the Department will authorize IMCF to install culverts in the berm to allow for the gradual introduction of exchange of waters between the reclaimed area and the natural Hookers Prairie system. Following this process, after approval by the Department, IMCF will remove the berm area by pushing it back into the ditch and will replant the disturbed area in the previous location of the berm with desirable herbaceous wetland species. At that point, the reclaimed area will be totally reconnected to the rest of the western Hookers Prairie. The reclamation of the Section 14 Area will involve the recreation of approximately 121 acres of herbaceous wetlands. This is approximately the same amount of herbeceous wetlands that were mined or disturbed in the Section 14 Area. In addition, 24 acres of forested wetlands will be created. This is approximately six times the number of area of forested wetlands that were in the Section 14 Area prior to mining operations. IMCF has had extensive experience in the reclamation of wetland systems in Florida. The company has reclaimed over 3,000 acres of wetlands over the last ten years. The company's experience includes the reclamation of both herbaceous wetland systems and forested wetland systems. With regard to the proposed mitigation, the primary issue at dispute in the hearing was whether IMCF can control the growth of nuisance species, such as cattail and primrose willow, in accordance with the Department's current policy. This policy, which will be implemented as a condition of any permit issued in this matter, is that nuisance species shall be limited to ten percent or less of the total cover or, if these species exceed ten percent of the total cover, their density must be declining over several years. IMCF would use several methods to limit the growth of nuisance species in the reclamation area. The company will flood the reclamation area immediately following recontouring. In addition, the company will assure that water levels are maintained in the project area throughout the vegetation period. These hydrological controls are designed to preclude seeds from nuisance species growing nearby from blowing into the area and propagating. These seeds will not propagate under water. In addition, the project area would be covered by a two-inch to six- inch layer of organic mulch material. The use of such organic material inhibits the growth of nuisance species. Finally, IMCF will plant desirable wetland species on a relatively dense basis; i.e., on three- to five-foot centers. When established, these desirable species are expected to quickly grow and outcompete any nuisance species that may enter the area. There is legitimate concern about the growth of nuisance species in the reclamation area and about the company's ability to eradicate or remove nuisance species if in fact the area does become invaded. There also is legitimate concern that the disturbance caused by the construction of the perimeter berm might induce the growth of a five to fifteen foot band of nuisance species outside of the Section 14 Area. Even if this occurred, it would not have a significant impact on the Hookers Prairie system, which already contains a large amount of "nuisance species." Finally, there is a concern whether nuisance species can be kept out of the ditch and berm area after the berm is leveled since there no longer would be hydrological controls in place. I am persuaded by the weight of the evidence presented in this matter that, with the following additional special permit conditions, IMCF has provided sufficient reasonable assurances to the Department that it will be able to successfully reclaim the Section 14 Area and to control nuisance species growth in accordance with applicable Department policy: that, in accordance with existing Department policy, the plant material used for revegetation for the reclamation project be plants that grew naturally within 50 miles of the reclamation site; that the elevations in the reclamation site be "fine-tuned" after recontouring but before removal of the ditch and berm to approximate existing elevations as closely as possible except when deviations from existing elevations might be desirable to better accomplish the goals of the reclamation project and reduce nuisance species; that, upon removal of the ditch and berm, all nuisance species (cattails and primrose willow) that may have invaded the perimeter band along the berm (see Finding 25, above) be removed and revegetation over the ditch and berm area be on two to four foot centers to aid competition with any invading nuisance species. Evaluation of Project Impacts Extensive testimonial and documentary evidence was presented at the hearing concerning a wide variety of potential impacts associated with the mining of the Section 14 Area. Potential impacts addressed included the impacts of mining and reclamation upon surface water and ground water quality, upon surface water flow conditions, and upon the availability of ground water for use as a portable water supply by the Bradley Junction residents. In addition, evidence was presented concerning potential impacts upon the Bradley Junction community in the form of fugitive dust, physical damage to structures in the community, and impacts associated with machinery noise generate during the mining and reclamation process. Surface Water Quality The perimeter berm and ditch system around the Section 14 Area will completely segregate the mining operations from the adjacent Hookers Prairie wetland system and the South Prong of the Alafia River. Therefore, the mining operations will not have a direct adverse impact upon the quality of surface water outside of the Section 14 Area. As noted in Findings Nos. 17(a) and 17(b), the temporary exclusion of just the Section 14 Area from the Western Hookers Prairie wetlands system will not have a significant adverse water quality impact. But, see "J. Cumulative Impact", below. Construction of the berm will not significantly affect dissolved oxygen levels in Hookers Prairie even in the areas immediately adjacent to the berm. Natural dissolved oxygen levels in the Hookers Prairie system are relatively low, and its waters are normally in a static or stagnated condition. (Construction of the berm probably will elevate dissolved oxygen levels in some areas near the berm by creation of small open water areas and lower levels in other areas where discarded plant material accumulates.) The weight of the evidence indicates that the construction of the berm will not cause a violation of state water quality standards outside of the Section 14 Area. During the reclamation process, water quality monitoring will take place and the resulting data will be presented to the Department. Upon Department approval, the reclaimed wetland system will be gradually reconnected to the natural Hookers Prairie system. The water quality in the Section 14 Area after reclamation will comply with applicable State water quality standards. Ground Water Quality Several residents of the Bradley Junction community have raised concerns about the quality of the water withdrawn from their portable water supply wells. While it does appear that water from certain of these wells may be of substandard quality, this condition is not a result of phosphate mining operations and will not be affected by the mining and reclamation of the Section 14 Area. The basis for this finding is: Mining in the Section 14 Area will take place in the surficial aquifer system. Portable water supply wells in the Bradley Junction community area draw water from the intermediate aquifer system. The intermediate aquifer system is separated from the surficial aquifer system by a thick, relatively impervious clay layer that significantly impedes the vertical flow of ground water. The Section 14 Area is located hydrologically downgradient from the Bradley Junction community. Any seepage from mining operations will move away from Bradley Junction, not toward that location. The quality of the water that will be found in the mine cuts and ditches in the Section 14 Area is very good and probably would not significantly adversely impact the quality of the portable water drawn from Bradley Junction water supply wells even if it were physically possible for the mining-related waters to reach the wells. The Polk County Public Health Unit of the Department of Health and Rehabilitative Services carried out a study of the quality of portable water in the Bradley Junction community. The study indicates that water from certain of the wells exhibit elevated levels of fecal coliform. The probable source of this contamination is improper sanitary conditions in the area near the well locations. There is no evidence to indicate that phosphate mining operations have any impact on the quality of the water in these wells. Surface Water Flow Conditions At this time, the construction of the berm and ditch system and the mining in the Section 14 Area will have only a minor impact on surface water flow conditions outside of the Section 14 Area. The proposed mining and reclamation project itself will not cause an increased likelihood of flooding in downstream areas nor will it cause increased erosion in the South Prong of the Alafia River. IMCF has applied for and received a "Works of the District" permit for the Section 14 Area from the Southwest Florida Water Management District, the state agency primarily responsible for evaluating the impact of construction activities on surface water flow conditions. But see "J. Cumulative Impact," below. Ground Water Availability The digging of mine cuts in the surficial aquifer can result in a drawdown or lowering of the water table in the surficial aquifer system. If controls were not employed by IMCF in connection with the mining of the Section 14 Area, the surficial aquifer in the area of the Bradley Junction community could be drawn down by as much as five feet below natural levels. IMCF has applied for and received a consumptive use permit from the Southwest Florida Water Management District, the state agency primarily responsible for regulating the use of ground water in the State of Florida. The consumptive use permit requires IMCF to maintain the water level in the surficial aquifer at historic levels taking into account the natural variations in the water table that occur during the year. IMCF will comply with the conditions of the consumptive use permit by the use of two positive control methods. The perimeter ditch surrounding the project site will serve as a hydrological barrier or recharge ditch that will maintain the surficial aquifer water levels at historic levels. In addition, during mining operations, the dragline will cast the removed overburden material against the face of the mine cut. This procedure will have the effect of sealing the face of the mine cut and inhibiting the flow of ground water from contiguous areas into the mine cut. In accordance with the consumptive use permit, IMCF will monitor water levels adjacent to the Section 14 Area to assure compliance with the drawdown restrictions. 1/ As noted in Finding No. 32(a), the portable water supply wells in the Bradley Junction community draw water from the intermediate aquifer system. Water levels in the intermediate aquifer system are not significantly affected by the water levels in the surficial aquifer. The two systems operate independently by virtue of the thick confining layer that separates them. Mining operations in the surficial aquifer in the Section 14 Area will have no effect on the water levels in the intermediate aquifer system underlying the Bradley Junction community. Therefore, the proposed mining operations will have no effect upon the availability of water in the Bradley Junction portable water supply wells. Dust Dragline operations and slurry pit operations are wet process activities that do not generally result in the emission of dust. Dust can be emitted as a result of vehicle travel on access roadways, by land clearing operations, and during reclamation activities especially in the dry season under high wind conditions. IMCF will control dust emissions from the Section 14 Area by use of water trucks to keep access roads moist. In addition, IMCF will curtail land clearing and reclamation operations during periods when high winds are prevailing in the direction of the Bradley Junction community. Physical Impact on Structures Certain residents of the Bradley Junction community have complained that nearby mining operations have caused physical damage to their homes. The evidence presented at the hearing, however, demonstrates that neither vibration caused by the equipment used in mining operations nor the construction of mine cuts will cause any adverse physical effects on nearby structures. The basis for this finding are as follows: Vibration measurements taken in the vicinity of the type of equipment that will be used in the Section 14 Area demonstrates that the vibration levels that will be experienced at the residences closest to the mining operations are far below the level that would cause any structural damage. These worse case conditions would be experienced at a point approximately 250 feet from the mining operations. It should be noted that these conditions will only occur when mining operations are taking place in upland areas outside of the Department's jurisdiction. Vibration impacts resulting from mining activities in the more distant jurisdictional wetland areas are even less significant. A slope stability analysis carried out by Dr. John Garlanger demonstrated that the construction of a mint cut at a distance no closer than 250 feet from a residence will cause no adverse impact on the structural integrity of the residence. This conclusion is underscored by the fact that the dragline, which is larger and heavier than the typical Bradley Junction home, will safely operate very near the edge of the mine cut without significant risk of slope collapse. Any current physical damage to structures in the Bradley Junction community is probably the result of age, water damage, improper site preparation, and other improper construction techniques. Noise Draglines, pumps, and other pieces of heavy equipment to be used in the mining and reclamation of the Section 14 Area will produce noise that is audible to, and will be annoying to, the people living near the project. None of the expected noise levels will exceed the guidelines established by the Federal Highway Administration ("FHA") for construction of highway projects near residential communities. The FHA guidelines require that noise levels may not exceed 70 decibels more than 10 percent of the time. Even in the worst case situation, which involves mining in the upland areas no closer than 250 feet from a residential structure, the expected noise levels will not exceed the FHA guidelines. When mining operations occur at more distant locations, the noise experienced in the Bradley Junction community will be proportionately reduced. The suggested United States Environmental Protection Agency noise level limitation is 55 decibels. At the 55-decibel level, there was scientific evidence that noise exposure resulted in irritability and sleep loss, but no actual hearing loss would occur. The 55 decibel EPA guideline is calculated differently than the FHA guidelines. The maximum levels expected to occur near the Section 14 Area based on the data collected by Mr. Nelson were essentially in compliance with the EPA recommendations. Furthermore, the predicted noise levels reflect outside noise levels. The noise levels inside the structures in the Bradley Junction community would be below the recommended EPA levels because of noise attenuation by the structure. The mining operations would have a reduced impact upon sleep because the company will not operate between the hours of 11 p.m. and 7 a.m. when close to the residences. Mining operations in the northernmost portion of the project will occur over a period of seven months. Reclamation in the immediate vicinity of the Bradley Junction community will be completed within six months following mining operations. The predicted worst case conditions during mining and reclamation will occur only over a few weeks with regard to any particular residence. These worst case conditions will occur in upland areas outside the Department's jurisdiction. Noise resulting from activities taking place within jurisdictional wetlands is at even lower levels. Polk County Ordinance. The governmental body primarily responsible for public health concerns such as dust, noise and vibration impact or structures is the local government, Polk County. Polk County has enacted a mining setback ordinance which is less restrictive than other nearby counties - - only 250' from the nearest residence versus 500' in Hillsborough County and 1000' in Manatee County. Under the Polk County ordinance, IMCF is able to mine as close to Bradley Junction residents as it proposes. Archeological Resources There are no significant historical or archeological resources in the Section 14 Area. Cumulative Impact Hooker's Prairie is a wetlands marsh system which comprises the headwaters of the South Prong of the Alafia River. The Section 14 project area is an integral part of the Prairie. Although IMCF's case thoroughly addressed all other issues raised by the opponents of the Section 14 project-- including noise, dust and even damage to structures from vibration-- its case conspicuously failed to as clearly address the question of cumulative impacts. It is not clear from the evidence if Hookers Prairie historically was 3000 acres, 3500 acres or some other size. Likewise, the current size of the Prairie, unmined and unsevered, also is unclear from the evidence. DER has issued five previous permits for phosphate mining in Hooker's Prairie. These permits are to W. R. Grace for approximately 1000 acres in the Eastern Prairie and IMCF for approximately 120 acres in the Western Prairie, including the recent IMCF Section 12 project involving mining and filling approximately 100 acres of Hooker's Prairie. It is not clear from the evidence how much of the 1000 acres already has been mined. DER's appraisal report, dated November 4, 1987, states that there has been recent mining in Section 18 in the Western Prairie. It points out that, as a result, cattails have intruded into Section 13 of the Prairie from the east. The report states that, aside from the Section 14 project area, there were then only 720 acres of wetland left in the Western Prairie, which has been almost blocked from the Eastern Prairie by mining activities, 620 in Section 13 and 100 in the west side of Section 7. It also states that almost 700 acres "in [the Section 14 project) area alone" were then permitted for mining. Although it is not clear, this appears to consist of 96 acres IMCF had under permit "in this immediate vicinity" and 580 acres of the Prairie to the east. It is not clear whether this acreage is in addition to, or part of, the acreage referred to in Finding 48, above. To date, no one has successfully restored mined wetlands in Hooker's Prairie. IMCF has restored a small, approximately 20 acre tract of wetland in the Western Prairie, but no success determination has yet been made. IMCF's approximately 100 acre restoration in Section 12 is underway. Efforts by Grace to restore mined wetland in the Eastern Prairie were delayed while Grace and DER negotiated an alternative to the original "land and lakes" restoration concept approved under the DER permits. A wetlands restoration concept finally having been agreed to, restoration now is underway. W. R. Grace has plans to mine the entire remaining wetlands of Hookers Prairie in the foreseeable future. Wetland restoration takes approximately two to four years. IMCF plans to mine in Section 14 from July, 1989, through December, 1991. Restoration is planned to take place through December, 1994. It may take longer. During part of this time period, IMCF's 120 acres of restoration in the Western Prairie still will not be functional. There was no evidence to suggest that the Grace wetlands restoration would be completed before IMCF plans to complete its Section 14 restoration project. There was no evidence as to when Grace is expected to complete any restoration of the 1000 acres it has under permit in the Eastern Prairie. The same would be true of any other parts of the wetlands that may be under permit. In light of the substantial, though undeterminable, reduction of the size of Hooker's Prairie from its historical size, the cumulative impact of removing an additional 131 acres of wetland from the system for approximately five or more years is significant. During this time, the size of functional wetland in the Prairie may be close to just half its historical size or even less. IMCF has not given reasonable assurances that the cumulative impact of the loss of another 131 acres of Hooker's Prairie for five or more years, combined with the recent reduction in the size of the functional wetland, will not be contrary to the public interest. Further phosphate mining in Hooker's Prairie should await successful restoration of wetlands in areas already under permit for mining operations.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Environmental Regulation deny the application of IMC Fertilizer, Inc., to mine for phosphate in Section 14, Hooker's Prairie, at this time. RECOMMENDED in Tallahassee, Florida this 14th day of February, 1989. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 14th day of February, 1989.
Findings Of Fact On November 1, 1982, Respondent Janson filed a Joint Application for a dredge and fill permit from Respondent, Department of Environmental Regulation, and from the Department of the Army Corps of Engineers. The project described in that application involved the construction of an approximately 1,000-square- foot, pile-supported residence, landward of the mean high water line but within the landward extent of Robinson Creek in St. Johns County, Florida. The proposed project also involved the placement of approximately 35 cubic yards of fill and a 30-foot culvert within a small (approximately 4-foot), tidally- influenced roadside ditch for driveway access and parking. The original application sought permission to place part of a concrete driveway and tool shed within the landward extent of Robinson Creek. The project is to be constructed on Lot 47, J.A. Lew Subdivision. Respondent Janson owns Lot 47, as well as Lots 45 and 46, which lots are north of and adjoining Lot 47 and also adjoining Robinson Creek. The next adjoining property owner to the north is the City of St. Augustine, Florida, which presumably owns the street. The adjoining property owner to the south of Lot 47 is Virginia P. Melichar. Neither Melichar nor the City objected to the Department's approval of the dredge and fill permit application. In support of his application, Janson retained the services of a registered surveyor and civil engineer, who performed a survey on Lot 47 to determine the location of the mean high water line with reference to the proposed project. That expert determined the location of the mean high water line to be at elevation 2.4 feet. Accordingly, all work contemplated by the dredge and fill permit is upland from the mean high water line. T.J. Deuerling, an environmental specialist for Respondent, Department of Environmental Regulation, visited the project site on December 13, 1982 and on December 30, 1982 in order to prepare the Department's Biological and Water Quality Assessment. As a result of those site visits, Deuerling recommended to Respondent Janson that he modify his permit application by moving the concrete slab and tool shed from the marsh area onto the uplands. Janson did so revise his application. In spite of the name of the permit being sought by Respondent Janson, the project involves no dredging. However, the culvert and its attendant fill would be placed in the man-made roadside ditch. That ditch constitutes a very weak transitional marsh. Although the culvert will eliminate some vegetation within that ditch, the effect of the elimination will be insignificant on water quality. The pilings for the pile-supported residence will also eliminate a small area of marsh. The anticipated shading caused by the pile-supported residence may impact somewhat on the vegetation in a small area below the residence; however, due to the fact that the floor of the house will be eight feet above the ground, light will still be able to penetrate. Therefore, the vegetation below the pile-supported residence will continue to act as a filter for pollutants. Janson has mitigated the small loss in wetlands by modifying his project so as to remove the concrete slab and tool shed from the marsh area to the uplands. Due to the project's small size, no storm water impact can be expected. Additionally, no evidence was introduced to show a violation of any water quality standard as a result of the proposed project. On March 16, 1983, Respondent, Department of Environmental Regulation, executed its Intent to Issue the dredge and fill permit in accordance with the revised application and subject to the conditions that: (1) turbidity curtains be employed in the ditch during the placement of fill over the culvert to contain any turbidity generated, and (2) construction on the uplands be confined to periods of normal water level conditions. On July 5, 1983, the Department of the Army Corps of Engineers issued its Permit and Notice of Authorization. The essence of the testimony presented by the Petitioners, including that of the employees of the St. Johns River Water Management District, who testified in opposition to the proposed project, is that even though Janson's proposed project would not impact water quality in a way that was either significant or measurable (although no one even suggested any specific water quality standard that might be violated), approval of Janson's permit might set a precedent for other projects which might then have a cumulative impact in some unspecified way at some unspecified location. No evidence was offered to show that Respondent, Department of Environmental Regulation's review of permit applications is other than site specific. Further, no evidence was introduced to show any proposed project anywhere having any impact with which Janson's project could be cumulative. Petitioners Sandquist and Shuler live in the neighborhood of the proposed project, perhaps as close as two blocks away.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the petition filed herein as to each individual Petitioner and issuing a dredge and fill permit to Respondent Janson in accordance with his revised application. DONE and RECOMMENDED this 13th day of January, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 13th day of January, 1984. COPIES FURNISHED: Stormy Sandquist 3 Aviles Street St. Augustine, FL 32084 Marion C. Snider Volla F. Snider 79 Fullerwood Drive St. Augustine, FL 32084 Carmen Ashton 51 East Park Avenue St. Augustine, FL 32084 Reuben D. Sitton Gail P.Sitton 35 Seminole Drive St. Augustine, FL 32084 Sandra N. Shuler 22 East Park Avenue St. Augustine, FL 32084 Patty Severt Greg Severt 1 Fern Street St. Augustine, FL 32084 Nancy Moore Paul Moore, Jr. 6 Fern Street St. Augustine, FL 32084 John D. Bailey, Jr., Esq. P.O. Box 170 St. Augustine, FL 32085-0170 Charles G. Stephens, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301
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 The Department of Environmental Protection (Department) is the administrative agency of the State of Florida which has the authority to administer and enforce the provisions of Chapter 403, Florida Statutes and the rules promulgated thereunder, Title 17, Florida Administrative Code, as well as other laws and rules related to protection of the environment. The Department is the successor agency to the former Department of Environmental Regulation and Department of Natural Resources. Respondent, Bob Chipman, owns and operates Fish Haven Lodge, One Fish Haven Road, Auburndale, Polk County, Florida. This subject property is located on the west shore of Lake Juliana in the Green Swamp Basin. Fish Haven Lodge is a small mobile home park and fishing camp, with approximately fifty mobile homes and seven cottages. There is a fishing pier built in the 1960's and a boat ramp; neither structure is at issue in this action. The lodge and camp were opened in 1963, some twenty years after Mr. Chipman's grandfather bought the property. Originally, the property sloped gently down to the shore of the lake. Mr. Chipman calls the lakefront a "parking lot for boats", as his patrons and tenants pull their boats up on the shore and "park" them. In the early days, poles were installed up on the shore for securing the boats. Over the years, the lake has eroded the shoreline. As people rented the mobile home lots and were given access to the lake, they would ask permission of Mr. Chipman to build little walkways to get in and out of their boats. These proliferated, and now there are at least twelve such structures. The property began experiencing severe erosion. Whenever it stormed, ruts were washed out, cutting into the grassy areas. Attempts to fill the ruts with dirt and sod provided only a temporary solution. Eventually, instead of a gradual slope, there was an abrupt drop into the lake waters. Mr. Chipman perceived this erosion as a hazard to his remaining property and to the people who used the lakefront. He also found it difficult to mow and maintain the neat, well-kept appearance of the property. In June 1992, Mr. Chipman, without benefit of permit of any sort, commenced building small sea walls, or what he calls "retention walls" on both sides of the fishing pier and along the contour of the shore. The walls are constructed of 2 x 10 wooden boards nailed on posts. The only way to hammer the boards on the landward side of the posts was to dig, then build, then backfill the area behind the walls. The fill came from both landward and waterward of the walls. Later, more fill was placed along the walls, but this was gravel fill. As the walls were built, the existing walkways, or small "docks" were removed and were replaced in a neater, more uniform fashion. The poles were repositioned and planks were replaced. There are approximately twelve of these repositioned walkways, or docks. Photographs taken by Mr. Chipman during the construction show the lakewaters approaching the planks of the wall, and in one view (Petitioner's exhibit #4) the water is lapping up to the planks. The walkways or docks are well into the water. Mr. Chipman concedes that the water has risen up the bottom 2 x 10 board, and that the walls were installed during a period of high water. Notwithstanding this evidence, Mr. Chipman contends that he built his walls along the edge, but not within, the jurisdiction of the "waters of the state". He contends that he was not trying to recapture property he lost to erosion, but rather, he was trying to save what he had left. He admits that the walkways or docks are in the water, but he suggests that they are "grandfathered", as they existed for several years, and some as long as twenty to thirty years. A basic principle of water boundary is that it is an ambulatory line; it moves with erosion or accretion. Erosion is a natural phenomenon. The Department established its jurisdictional water boundary in this case by several means. Ted Murray, an environmental specialist with the Department who was qualified at hearing without objection as an expert in jurisdictional determination, inspected the subject property and found submerged species of vegetation along the seawalls. These species included arrowhead and wild tarrow, common names for species which require the presence of water to grow. In an area where the seawalls were not built, wild tarrow was found four or five feet behind the line where the seawalls had been built, indicating that the water fluctuated naturally where unimpeded by the walls to an area landward of the walls. Two hydrological indicators of the landward extent of waters of the state were noted by Mr. Murray. One was the debris line or "rackline" created by the deposit of debris by fluctuating waterlevels. The other hydrological indicator was the escarpment found north of the boat dock. This escarpment is a miniature cliff, or drop-off caused by the high water line. This is a common situation found at lakeshores. In this case, Department staff located a post that already existed at the escarpment. At the request of the Department, the Southwest Florida Water Management District conducted a land survey, shooting elevations at various locations on the property. The existing post was a reference point agreed by the parties the day the survey was conducted; Mr. Chapman claimed that he had constructed his seawalls landward of that post. The elevation at the post and at the base of the escarpment was measured at 132.6 feet above sea level. At a lake like Lake Juliana, the water level will tend to be the same elevation all around the lake. Any structure or fill placed above 132.6 feet elevation would be in uplands; any structure or fill placed below that elevation would be within the landward extent of Lake Juliana, and therefore within the permitting jurisdiction of the Department. Survey elevations of the seawalls, taken at several points, indicate that the seawalls and fill were placed one to two feet below the jurisdictional line. The fact that the Southwest Water Management District had previously established feet as the minimum flood level for Lake Juliana adds credence to the line established as described above. There have been several enforcement actions on Lake Juliana, including three or four recent violations involving seawalls and associated backfill in jurisdictional waters. Mr. Chipman's is not an isolated case. As he recounts, folks saw him building this wall and told him they would like the same thing. The cumulative effect of such structures on the Lake Juliana environment is substantial. Seawalls preclude vegetative shorelines that would otherwise serve as nutrient assimilation and habitat for a variety of organisms that inhabit the lake. Even though Mr. Chipman's walls are only a foot or so into the wetlands, the surface area affected by the approximate 126 feet length of the walls is close to 500 square feet, including the fill area behind the walls. Loss of vegetation will lead to loss of fishes that depend on the vegetation for feeding, hiding and nesting. Although the docks or walkways can provide nesting or hiding places, their effect is still a net loss, since, as constructed, they deprive the vegetation of needed sunlight. As constructed, the seawalls would not have been permitted by the Department because the same purpose could have been served by building the walls in the uplands just a few feet away. The Department staff have discussed alternatives with Mr. Chipman. The best natural defense against erosion is a gentle slope that is vegetated with native plant species. That solution may not be practical where there is an embankment and where there is constant usage by boats and people. The most practical solution based on evidence in this proceeding is for Mr. Chipman to move the walls back into the uplands and restore the shoreline. There is no controversy that all of the construction by Mr. Chipman was done without permits. His business has been operating since 1963, and he felt that the effort to impede erosion of his "boat parking lot" was of no concern to the state. He has been candid and cooperative with the Department staff, and there is no basis to find that his excuse for not seeking permits is in any way bad faith.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department enter its Final Order finding that Respondent, Bob Chipman, committed the violations alleged and requiring the removal and restoration described in the notice of violation and orders for corrective actions which initiated this proceeding. DONE AND RECOMMENDED this 29th day of November, 1994, 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 29th day of November, 1994. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 David Thulman, Esquire Heidi E. Davis, Esquire Asst. General Counsel DEP-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Bob Chipman Fish Haven Lodge One Fish Haven Road Auburndale, FL 33823
The Issue The issue in these cases is whether proposed amendments to Rules 40C-4.041, 40C-4.051, 40C-4.091, 40C-41.011, 40C-41.023, 40C-41.033, 40C-41.043, 40C-41.051, and 40C-41.063, and the related revisions to the Applicant’s Handbook: Management and Storage of Surface Waters are an invalid exercise of delegated legislative authority as alleged by petitioners.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioners in Case No. 97-0870RP, Consolidated-Tomoka Land Company; Indigo Development Group, Inc.; Indigo Group, Inc.; Indigo Group, Ltd.; Patricia Lagoni, as Trustee of Trust Nos. IDI-1, IDI-2 IDI-3 and IDI-4; Seaview Development Corporation; LeRoy E. Folsom; James S. Whiteside, Jr. and Joan W. Whiteside; Susan Spear Root; Susan R. Graham and Chapman J. Root, II, Trustees of the Chapman S. Root 1982 Living Trust; Daniel P. S. Paul, individually and as trustee of the Daniel P. S. Paul Charitable Remainder Trust; and Ava and Rufus, Inc. (petitioners), own real property within an area which will be affected by certain rules proposed by respondent, St. Johns River Water Management District (District). The District is authorized to adopt rules pursuant to Chapters 120 and 373, Florida Statutes. Petitioners in Case No. 97-0871RP, Samuel P. Bell, III and Anne Moorman-Reeves (petitioners), also own real property within an area affected by the proposed rules. Both groups of petitioners are substantially affected persons and thus have standing to inititate these rule challenges. Intervenor, Association of Florida Community Developers, Inc. (AFCD), is a not-for-profit corporation comprised of forty members, primarily developers. Its mission is to promote programs that encourage economic growth in Florida "through the responsible development of large-scale residential communities." Of its forty members, seven own property within the boundaries of the District and regularly apply for permits from the District for the development of large-scale residential or mixed-use developments and five regularly apply for permits on behalf of land owners. Only one member, however, Consolidated-Tomoka Land Company (Consolidated-Tomoka), which is already a party in Case No. 97-0870RP, owns property within the area affected by the proposed hydrologic basins. For the reasons cited in the Conclusions of Law, AFCD lacks standing to participate in this proceeding. The development of the proposed rules was formally initiated by the District in May 1994. At that time, the District began investigating the need for criteria including delineation of new hydrolgic basins, a recharge standard, water quality criteria, erosion and sediment control, a standard to limit drawdowns in wetlands, a special zone for the protection of habitat, and local government notification. After notice of rule development was published in October 1995, and several workshops were held, on January 17, 1997, the District published notice in the Florida Administrative Weekly of its intention to make certain revisions to Rules 40C- 4.041, 40C-4.051, 40C-4.091, 40C-41.011, 40C-41.023, 40C-41.033, 40C-41.043, 40C-41.051, and 41C-41.063, and related revisions to portions of a document known as the Applicant’s Handbook: Management and Storage of Surface Waters (Handbook). On February 12, 1997, by a 5 to 3 vote, the District’s Governing Board formally proposed to adopt those rules, with two amendments. In broad terms, the new rules create two geographic areas of special concern and impose more stringent permitting standards and criteria for systems within those areas. Claiming that the proposed rules were invalid on a number of grounds, petitioners in Case Nos. 97-0870RP and 97- 0871RP initiated these proceedings by filing petitions on February 21 and 24, 1997, respectively. In petitions which include almost every statutory ground for invalidating a rule under Section 120.52(8), Florida Statutes (1996), petitioners have first contended that Rules 40C-4.091(1)(a), 40C-41.011, 40C- 41.023, 40C-41.063(6)(a)-(d), and Handbook Sections 11.0(e), 11.5, 11.5(1), 11.5.2, 11.5.3, 18.1 and Appendix K, are invalid because they exceed the District’s grant of rulemaking authority. They also contend that Rules 40C-41.063(6)(a) and (d), and Handbook Sections 11.5.1, 11.5.4, and 18.1, are invalid because they enlarge the specific provisions of law implemented. They next contend that Rules 40C-4.051(7), 40C-4.091(1)(a), 40C- 41.011, 40C-41.023, 40C-4.041(2)(b), 40C-41.051(2), 40C- 41.063(6)(a), (b) and (d), and Handbook Sections 3.3.1(c) and (f), 11.5.2 and 11.5.4, are not supported by competent substantial evidence. They allege further that Rules 40C- 4.041(2)(b), 40C-4.051(7), 40C-4.091(1)(a), 40C-41.011, 40C- 41.023, 40C-41.051(2), and 40C-41.063(6)(a)-(d), and Handbook Sections 3.3.1(c) and (f), 11.0(e), 11.5, 11.5.1, 11.5.2, 11.5.3, 11.5.4, 18.1 and Appendix K are arbitrary and capricious. Petitioners next contend that Rules 40C-4.041(2)(b) and 40C- 41.063(6)(a)-(d), and Handbook Sections 3.3.1(c) and (f), 11.5.1, 11.5.2, 11.5.3, 11.5.4 and 18.1, are invalid because their alternative lower cost proposal substantially accomplishes the statutory objectives purportedly being implemented through the proposed rules and revisions. Finally, petitioners assert that Rule 40C-41.063(6)(d) and Handbook Section 11.5.4(d) are invalid because they fail to establish adequate standards to guide, and vest unbridled discretion in, the District. As a corollary to these claims and in the event they prevail on any issue, petitioners have requested attorney’s fees and costs under Section 120.595(2), Florida Statutes, on the theory the District’s actions were not substantially justified and there are no special circumstances which would make an award to petitioners unjust. The Proposed Rules Generally The proposed rules affect two geographic areas within the District designated as the Tomoka River and Spruce Creek Hydrologic Basins. The former basin is located almost entirely in the northeastern portion of Volusia County and covers some 150 square miles. The latter basin is located in the southeastern portion of Volusia County and covers 94 square miles. Together, the two basins make up more than twenty percent of Volusia County, and they include parts of the Cities of Daytona Beach, Ormond Beach, and Port Orange. Although the Tomoka and Spruce Creek Rivers, which flow through the basins, were designated Outstanding Florida Waters (OFW) on July 11, 1991, on balance, the water quality of both basins can only be characterized as fair. The Halifax River is a large estuarine system that lies north of the Indian River Lagoon and south of the Matanzas and Tolomato systems and parallel to the Atlantic Ocean. The Tomoka River Basin is at the northern end of the Halifax River, while the Spruce Creek Basin is at the southern end. The Halifax River connects with the Atlantic Ocean in only one place, Ponce Inlet, which is between the proposed basins. Because of this single connection, the estuary is a very low energy system due to minimal wave action, and the system is dependent on the basins that drain into the Halifax River. Thus, the water resources and the integrated components of habitat of the proposed basins are critical to the overall health and biological diversity for the entire region. The District regulates and controls the management and storage of surface waters through its Environmental Resource Permit (ERP) program, which has district-wide application. There are two types of permits relevant to these proceedings: stormwater and ERPs. The former permit is designed for smaller residential or commercial developments and primarily protects against the adverse impacts of stormwater runoff on water quality. An ERP is required for larger systems and covers a broad range of issues including water quality, water quantity, and biological concerns. Criteria for the issuance of individual and conceptual approval permits for systems which meet certain thresholds are found in Chapter 40C-4, Florida Administrative Code, while additional standards and criteria (over and above those found in Chapter 40C-4) for systems within specified designated areas of special concern are found in Chapter 40C-41, Florida Administrative Code. Such areas of special concern contain more stringent regulatory criteria, and they are designed to address specific problems in given areas where high quality resources need special protection, or rapid development adversely affects the water resources. In addition, by Rule 40C-4.091, the District has adopted and incorporated by reference a document known as the "Applicant’s Handbook: Management and Storage of Surface Waters" (Handbook) which "provides applicants, potential applicants, and others who are interested, with information regarding the permitting program for the regulation of surface water management systems under Chapters 40C-4, 40C-40, 40C-41, and 40C-400, F.A.C." This controversy involves a challenge, on numerous grounds, to proposed revisions to all or parts of three rules in Chapter 40C-4, six rules in Chapter 40C-41, and a number of related revisions in the Handbook. Chapter 40C-4 and the Handbook 10. Proposed Rules 40C-4.041(2) and 40C-4.043(1), and Handbook Sections 3.3.1 and 11.0, establish the new basins and make them subject to the provisions of Chapters 40C-4 and 40C-41 and the Handbook. The proposed basins are made up of smaller drainage basins associated with the tributaries to the Tomoka River and Spruce Creek. Besides the two new basins, the District has already established at least five other areas of special concern (basins) within its boundaries. Under current Chapter 40C-4, an ERP is required for the construction, alteration, operation, maintenance, abandonment, or removal of a surface water management system which serves projects with a total land area of 40 or more acres, provides for the placement of 12 or more acres of impervious surface, or has any wetland impact. Smaller projects need only obtain a stormwater permit from the District. By proposed amendments to Rules 40C-4.041(2)(b)3., 6. and (g), and Sections 3.3.1(c) and (f) and 11.0(e) of the Handbook, these thresholds within the two basins are reduced to 10 acres and 2 acres, respectively. Thus, if the revisions become effective, some projects which now qualify for stormwater permits will require a general ERP. It follows that any projects not exceeding these thresholds are exempt from permitting requirements. New provisions relative to exemptions from the permitting thresholds are found in Rule 40C-4.051(7) while the legal description of the two basins is found in Rule 40C- 4.091(1)(a) and Appendix K of the Handbook. Exempted from the permitting thresholds are those systems which meet the conditions for exemption set forth in subsection (2) of the rule, and systems "which consist of public road shoulder paving, outside the Riparian Habitat Protection Zone, which do not result in the creation of additional traffic lanes, and systems which consist of public turn lane construction outside the Riparian Habitat Protection Zone." In addition, related revisions to Sections 11.5, 11.5.1, 11.5.2, 11.5.3, 11.5.4 and 18.1 of the Handbook add four special basin "standards and design criteria" to the current District requirements. These are extra permitting standards that must be met in addition to standards contained in the District’s ERP rules. Three of the criteria are engineering related while the fourth creates a Riparian Habitat Protection Zone (RHPZ) along the Tomoka River and Spruce Creek. The same criteria now apply in the Econlockhatchee River and Wekiva River Hydrologic Basins, two other designated areas of special concern. Section 11.5.1 imposes a new "recharge standard" which requires ERP permittees to retain within the Most Effective Recharge Area (MERA) three inches of runoff from the directly connected impervious surface area. MERAs are defined as areas with Type A soils. There is no requirement under existing rules that stormwater and ERP permittees retain runoff for recharge purposes. Current standards require that a system not cause a net reduction in flood storage within a 10-year floodplain. Under proposed Section 11.5.2 of the Handbook, a system within the basins must not cause a net reduction in flood storage within the 100-year floodplain. The proposed stormwater management standard in Section prohibits the use of certain stormwater treatment methodologies, such as the use of detention with filtration systems, based upon the size of the system. Current District rules contain no such size-based restrictions. In Section 11.5.4, the District proposes to establish RHPZs along the Tomoka River and Spruce Creek. These RHPZs extend a minimum of 275, 320 or 550 feet landward from the waterward edge of the wetlands adjacent to the defined portions of each watercourse. For example, if the adjacent wetlands extend 400 feet landward of the water’s edge in an area where the rule defines an RHPZ width as 550 feet, 150 feet of uplands landward of the landward extent of the wetlands would be included in the RHPZ at that site. The RHPZ also includes a minimum 50- foot upland component. The RHPZ standard also provides that development within a designated RHPZ is presumed to adversely affect the abundance, food sources, or habitat of aquatic or wetland dependent species in the RHPZ. An applicant may rebut this presumption, however, by demonstrating that the "overall merits" of the proposed development offset the adverse impacts. Chapter 40C-41 Existing Chapter 40C-41 designates five geographic areas of special concern and establishes additional criteria and standards for systems constructed within those areas. By amendments to Rules 40C-41.011, 40C-41.023(5), 40C-41.033 and 40C-41.043(1), the District proposes to add the Tomoka River and Spruce Creek Hydrologic Basins as new geographic areas of special concern. By changes to Rule 40C-41.063(6)(a)-(d), the District has also proposed to codify the previously described recharge standard, 100-year floodplain standard, stormwater management standards and RHPZ as special requirements for systems constructed within the basins. As specific authority for adopting the proposed rules, the District has cited, in varying combinations, Sections 120.54(8), 373.044, 373.046(4), 373.113, 373.118, 373.171, 373.406, 373.413, 373.415, 373.416, 373.418, and 373.421(2), Florida Statutes. It also cites, in various combinations, Sections 120.54(8), 373.046, 373.118, 373.409, 373.413, 373.4135, 373.414, 373.415, 373.416, 373.421(2)-(6), 373.426, and 373.429, Florida Statutes, as the laws being implemented. Do the Rules Exceed the Agency’s Grant of Rulemaking Authority? Petitioners first contend that Rules 40C-4.091(1)(a), 40C-41.011, 40C-41.023 and 40C-41.063(6)(a)-(d), and Handbook Sections 11.0(e), 11.5, 11.5.1, 11.5.2, 11.5.3, 11.5.4, 18.1 and Appendix K exceed the agency’s grant of rulemaking authority. The challenged rules and sections generally fall into two broad categories: (1) the establishment of the new basins and their legal descriptions, and (2) the establishment of new basin criteria. Proposed Rules 40C-4.091(1)(a), 40C-41.011 and 40C- 41.023(5), and Sections 3.3.1, 11.0(e), 11.5 and Appendix K, fall into the first category while Rule 40C-41.063(6) and Sections 11.5.1, 11.5.2, 11.5.3, 11.5.4 and 18.1 fall into the latter. In adopting the rules and sections pertaining to the new basins and their respective boundaries, the District has relied upon Sections 120.54(8), 373.044, 373.046(4), 373.113, 373.171, 373.415, 373.418, and 373.421(2), Florida Statutes, as the specific authority for adopting the rules. In adopting the new basin criteria, the District relies upon Sections 120.54(8), 373.044, 373.046(4), 373.113, 373.171, 373.415, 373.418 and 373.421(2), Florida Statutes, as the specific authority. For the reasons given in the Conclusions of Law portion of this Order, the challenged rules and sections exceed the District’s rulemaking authority and are thus an invalid exercise of delegated legislative authority. Do the Rules Enlarge the Specific Provisions of Law Implemented? Petitioners next allege that Rule 40C-41.063(6)(a) and (d) and Handbook Sections 11.5.1, 11.5.4 and 18.1 are invalid because they enlarge the specific provisions of law implemented. Paragraph (6)(a) of the rule and Sections 11.5.1 and 18.1 propose to adopt the recharge standard while paragraph (6)(d) and Section establish the new RHPZs. The law being implemented for both standards is Sections 373.413, 373.414, 373.416 and 373.426, Florida Statutes. Section 373.413 provides that the District "may require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration" of a system "will not be harmful to the water resources of the district." Similarly, Section 373.416 authorizes the District to require permits on reasonable conditions necessary to assure that the operation and maintenance of the system "will not be harmful to the water resources of the district." Section 373.414 authorizes the District to require applicants to provide "reasonable assurance" that state water quality standards will not be violated. Finally, Section 373.426 protects "the water resources of the district" from improper abandonment or removal of surface water management systems. The statutes being implemented do not refer to a recharge standard or RHPZ. Neither do they refer to any "particular" program or duty which would authorize these rules. Therefore, Rule 40C-063(6)(a) and (d) and Sections 11.5.1, 11.5.4 and 18.1 enlarge the law being implemented and thus are invalid. Are the Rules Arbitrary and Capricious? Petitioners next contend that Rules 40C-4.041(2)(b), 40C-4.051(7), 40C-4.091(1)(a), 40C-41.011, 40C-41.023, 40C- 41.051(2) and 40C-41.063(6)(a)-(d), and Handbook Sections 3.3.1(c) and (f), 11.0(e), 11.5, 11.5.1, 11.5.2, 11.5.3, 11.5.4, and Appendix K are arbitrary and capricious. These rules and sections pertain to the proposed basin designation and boundaries, threshold revisions, and exemptions. A determination as to whether the rules and sections are supported by fact and logic is set forth below below. Basins The establishment of two new hydrologic basins is based on the District’s concern to protect the water resources within these areas from the affects of growth, new homes and related infrastructure being built in the area. That is to say, additional resource protections are necessary in the proposed basins due to development pressure. While the parties have sharply disagreed over the extent, if any, of development pressure, it is noted that the coastal areas of Volusia County to the east of the proposed basins are already intensely developed. It can be reasonably expected that the population pressure in those areas will lead to increased development in the proposed basins. In addition, there has already been significant permitting activity in the proposed basins, and the number of binding wetland determinations issued by the District (for future five-year periods of time) indicate future development. It is true, as petitioners assert, that Volusia County’s population grew only 8.7 percent from 1990-1995, or less than the statewide average growth rate of 9.7 percent for the same time period, and that its growth rate is less than many other counties within the District. The evidence shows, however, that by the year 2010, Volusia County’s population is expected to increase by 115,530 people, not an insignificant number. At the same time, there is a concentration of numerous Floridan aquifer wellfields within or adjacent to the new basins. Increased water withdrawals from those wellfields will cause adverse impacts. The coastal communities of Volusia County, who are the primary users of water, project an increase in the need for water by the year 2010 of between 60 percent to 100 percent. Finally, development leads to compacted soils, an increase in impervious surfaces and a loss of habitat for aquatic and wetland dependent species. These result in increased runoff rates, with related higher volumes and rates of stormwater runoff. Also, they cause the introduction of stormwater pollutants such as fuels, oils, heavy metals, fertilizers and pesticide into the water. The establishment of new basins addresses these concerns. Given these considerations, it is found that the designation of the basins as areas of special concern is not without logic or reason. The fact that the basin boundaries had not been separately drawn, or used for planning purposes, by the District prior to May 1994 does not detract from this finding. Therefore, Rules 40C-4.091(1)(a), 40C-41.011 and 40C-41.023, and Handbook Sections 3.3.1 (c) and (f), 11.0(e), 11.5 and Appendix K are not arbitrary or capricous. Recharge standard Rule 40C-41.063(6)(a) and Section 11.5.1 of the Handbook require in part that "[p]rojects, or portions of projects, in the Most Effective Recharge Areas must retain three inches of runoff from the directly connected impervious area within the Most Effective Recharge Area of the project." In addition, Section 18.1 contains a list of Type A soils for Flagler and Volusia Counties to determine whether a proposed project is in the Most Effective Recharge Area. Petitioners contend there is no rational basis for imposing this more stringent permitting criterion. In response to this objection, the District established that the proposed basins are within an area of recharge for the Floridan aquifer. Rainfall is the sole source of freshwater recharge for the Floridan and surficial aquifer systems. In other words, rainfall percolates into the ground and recharges the surficial aquifer which in turn recharges the Floridan aquifer. As noted earlier, the coastal communities of Volusia County have projected an increase of at least 60 percent in the need for water by the year 2010. While there is no direct evidential correlation between water supply demand and population growth, it can be reasonably inferred that the population increase of more than 115,000 persons by the year 2010 will likewise increase the demand for water. As water withdrawals from existing wellfields increase, saltwater intrusion can reasonably be expected to occur in greater proportions. Saltwater intrusion has the effect of contaminating the Floridan aquifer and lowering the surficial aquifer, both of which impact wetland communities and the base flow of streams. To the extent that recharge is diminished, the problems associated with those water withdrawals will be exacerbated. Type A soil, to which the recharge standard applies, has the highest infiltration rate. When impervious surfaces (over Type A soils) are directly connected to a stormwater pond, the rainfall will have an opportunity to percolate into the soil. Through the use of recognized "curve" numbers and historical rainfall data in the vicinity of the proposed basins, the District established that the retention of three inches of runoff in Type A soils should result in post-development recharge approximating pre-development recharge. In view of the above, and the fact that existing ERP, OFW and management of storage of stormwater requirements are not sufficient to provide for equivalent retention of stormwater for recharge purposes, the recharge standard has a rational basis. Therefore, Rule 40C-41.063(6)(a) and Handbook Sections 11.5.1 and 18.1 are not arbitrary and capricious. Floodplain storage criteria Rule 40C-41.063(6)(b) and Handbook Section 11.5.2 establish new floodplain storage criteria for systems in the two basins or any of their tributaries. More specifically, they provide that a system "may not cause a net reduction in flood storage within the 100-year floodplain" of the two basins. Currently, this "no net reduction" standard applies only to development within the 10-year floodplain. The parties agree that flooding has occurred within the boundaries of the new basins. Two factors which affect flooding are excessive runoff and inadequate floodplain storage. The size of a project and the amount of impervious surface are directly related to the amount of runoff generated. The amount of runoff affects flooding conditions in downstream areas. The District also established that fill results in the loss of floodplain storage. The loss of floodplain storage in one area will increase flood elevations in other areas, both upstream and downstream from where the loss of floodplain storage occurs. Compensating storage provides storage volume to make up for the fill that is placed in the floodplain. The new standard requires that systems within the basins must not cause a net reduction in flood storage within the 100-year floodplain. Thus, if an applicant proposes to construct a system which reduces the floodplain’s storage capacity, the applicant will be required to compensate for the lost storage capacity, thereby preventing an increase in flood elevation. Even petitioners’ expert witness Harper agreed that the rule’s objective is a "worthwhile goal." Given these considerations, it is found that the floodplain storage standard is supported by logic and reason, and Rule 40C-41.063(6)(b) and Handbook Section 11.5.2 are not arbitrary and capricious. Stormwater management standard Proposed Rule 40C-41.063(6)(c) and Handbook Section provide generally that when constructing new stormwater management systems which serve drainage areas in excess of 10 acres, an applicant cannot use detention with filtration as the sole stormwater methodology. They also provide that when retention systems are not feasible due to limited percolation capacity, "wet detention treatment or other treatment demonstrated to be equivalent to retention or wet detention . . . must be used." Under current standards, applicants may choose the type and location of stormwater treatment ponds. Thus, instead of locating a detention pond in an area of high filtration, an applicant can choose to locate the detention in an area of low filtration thereby discharging the stormwater to surface waters. The evidence shows that detention with filtration systems fail after a relatively short period of time because pollutants clog the filters that remove them. Once filters clog, water does not filter and the pond does not function as designed. Malfunctioning detention with filtration systems can cause localized water quality violations. The new standard curtails the use of detention with filtration. The evidence further shows that the Tomoka River has moderately elevated levels of nitrogen and elevated levels of total phosphorus. The water quality in Spruce Creek is similar with even higher levels of total phosphorus. Because detention with filtration systems is an ineffective way to remove nitrogen, dissolved phosphorus, and dissolved metals, the receiving water bodies will be improved if the less effective detention of filtration systems is eliminated. The new standard will achieve this goal. Even petitioners’ expert witness Harper acknowledged that the detention with filtration method is a poor stormwater management technique. Based upon the foregoing considerations, it is found that the stormwater management standard is based on logic and reason, and Rule 40C-41.063(6)(c) and Handbook Section 11.5.3 are not arbitrary and capricious, as alleged by petitioners. Riparian Habitat Protection Zone Proposed Rule 40C-41.063(6)(d) and Handbook Section establish an RHPZ along the Tomoka River and Spruce Creek. These new zones provide additional protection over and above that provided under the existing ERP program. As noted earlier, these zones extend a minimum of 275, 320, or 550 feet landward from the waterward edge of the wetlands adjacent to the defined portions of each water course, and they include a minimum 50-foot upland component. The rule and section presume that certain activities within the zones will "adversely affect the abundance, food sources, or habitat of aquatic or wetland dependent species provided by (the) Zone," and to overcome this presumption, an applicant must demonstrate "that the overall merits of the proposed plan of development, including mitigation as described in section 12.3 . . . provide a degree of resource protection . . which offsets adverse effects of the proposed system on the uplands and wetlands within the Zone." Finally, the rule and section provide that "[s]ome reasonable use of the land within the Protection Zone can be allowed." The record contains sharply conflicting testimony regarding the logic and reason for the zones, and the parties have devoted substantial portions of their proposed findings of fact to address this issue. In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence, and this evidence is embodied in the findings below. To begin with, similar RHPZs already exist in the Econlockhatchee and Wekiva River Hydrologic Basins, two other geographic areas of special concern. Like the existing RHPZs, the purpose of the new RHPZs is to protect the riparian wetland and upland areas which are necessary to sustain viable populations of aquatic or wetland dependent species. The Tomoka River and Spruce Creek systems are important and critical for the wildlife and overall ecology of eastern Volusia and Flagler Counties. The riparian habitat along the two systems consist of estuarine saltwater marsh, forested wetlands, including cypress and hardwood, freshwater marsh, hammocks, flatwoods, and sandhills. Aquatic and wetland dependent species need a combination of these riparian habitats for feeding, breeding, and nesting. These species are an integral component of the water resources. There is a critical relationship among the biotic components of the water resources such as the living plants and animals. Interdependent relationships exist between all of these components, and if one component is not present, the overall balance and health of the water resource is adversely impacted. Similarly, the entire food chain is impacted by the loss of an aquatic or wetland dependent species from the aquatic or wetland system. The proposed RHPZ widths are based on, and related to, the spatial needs of species rather than a specific width of wetlands and uplands. Spatial requirement is the area an animal needs to perform all of its life functions, such as foraging, breeding, denning, and nesting, without harassment or any kind of detriment in order to maintain a viable population. All experts agree that, in order to sustain a viable population, 50 to 500 individuals must be maintained. Current ERP rules do not provide for this degree of protection for these spatial requirements. Spatial requirement is determined by two methods. One method is to determine the distance for which a species is sensitive to disturbance when it is feeding or nesting. For example, if a species is intolerant to humans and would require a distance of 200 feet away from humans, then that would be the spatial requirement of that species. A second method is to determine a species’ home range requirement. Home range is the area within which a species moves in order to obtain requirements to help sustain life, such as food. For those species for which no data in the literature exists regarding spatial requirements, a technique known as "guilding" is used to group species based upon their nesting and feeding zones. The proposed 550-foot RHPZ width addresses the spatial needs for a majority of aquatic and wetland dependent species in cypress and hardwood swamps. In the salt marshes, the 320-foot width satisfies the spatial needs of a majority of the species. Where the river narrows and the canopy covers the riverbed, there is a uniform habitat not separated by the water body. Therefore, a 275-foot RHPZ straddling the river provides the 550-foot width necessary to maintain viable populations. Under current rules, in order to reduce or eliminate wetland impacts, an applicant may propose a buffer with a minimum width of 15 feet and an average width of 25 feet between the wetland and the system being proposed in order to address the secondary impacts to the habitat of wetlands. This buffer essentially acts as a cushion around the wetlands to protect the wetland habitat from adjacent wetland development. If the wetland is used by a listed species, then additional measures may be required in order to protect the nesting, denning or critical feeding habitat of that species in the wetland. Listed species, however, do not include all aquatic and wetland dependent species, and they include only those that are classified as endangered, threatened, or species of special concern. The new 50-foot upland component will be applied in areas where the wetlands extend beyond the appropriate 550, 320 and 275-foot widths. This extension is necessary and appropriate because the existing rules are designed to protect the intrinsic value of wetland habitat. They do not, however, include protection of the intrinsic value of upland habitat, which is used, for example, by frogs and turtles. In addition, existing rules do not protect upland foraging areas or wildlife corridors except for those limited areas needed for ingress and egress to the nest from the wetland. Finally, most aquatic and wetland dependent species are not a listed species, and thus they receive no upland habitat protection under existing ERP rules. In contrast, the new rule provides protection for spatial needs of all aquatic and wetland dependent species and their use of uplands for foraging, breeding, and nesting. While there are some flaws in the analyses used by the District to justify the zones, collectively there is sufficient credible and persuasive evidence found in the Center for Wetlands Study, the 1990 East Central Florida Regional Planning Council report, detailed ground and air investigations, the District’s regulatory experience, and its permitting experience with basin rules in the Wekiva and Econlockhatchee Basins, which have similar RHPZ dimensions, to support a finding that the rule and section are based on logic and reason. Therefore, Rule 40C- 41.063(6)(d) and Handbook Section 11.5.4 are not arbitrary or capricious. Exemptions Proposed revisions to Rules 40C-4.051(7) and 40C- 41.051(2) exempt from permitting requirements projects which are less than 10 acres in size and of less than 2 acres of impervious surface. Also exempted are single family dwelling units not a part of a larger common plan of development or sale, public road shoulder paving, and systems that qualify for a noticed general permit. In their objection, petitioners have contended that there is no rational basis for exempting these activities, and that in proposing the rules, the District failed to consider the cumulative impacts of these exempt activities. In responding to these objections, the District established that exempt projects are not expected to comprise a large number of permit applications for the basins. Accordingly, such projects will not individually or cumulatively significantly exacerbate flooding problems. From a water quantity standpoint, exempt projects will have a relatively minimal impact, while water quality standards will be preserved through the stormwater permitting program. As to fish and wildlife issues, exempted projects will likewise have a relatively minimal impact. With respect to exemptions for public road shoulder paving, single family dwelling units, and systems that qualify for a noticed general permit, these projects are so small that they are not likely to have a significant adverse impact, either individually or cumulatively. Economic considerations regarding hardships played a role in the District’s decision to exempt projects under the 10- acre threshold. More specifically, criteria designed for larger parcels of land cannot be reasonably applied to small, subthreshold projects without the property owner enduring difficulty and severe hardship. Thus, the 10-acre threshold was chosen as a balance between water resource protection and providing flexibility in project sizes to accomplish project development. Because smaller projects will not need to meet the 25-year, 24-hour water quantity ERP attenuation requirement, land will be saved, and the project designer will have more flexibility when designing a project that is exempted from ERP thresholds. Finally, the District’s stated purpose of not placing an unnecessary burden on citizens attempting to develop small projects is a sound, rational basis for creating the exemptions. Accordingly, Rules 40C-4.051(7) and 40C-41.051(2) are founded on logic and reason, and they are not arbitrary and capricious. Are the Rules Supported by Competent Substantial Evidence? As a corollary to the arbitrary and capricious allegation, petitioners further contend that proposed Rules 40C- 4.041(2)(b), 40C-4.051(7), 40C-4.091(1)(a), 40C-41.011, 40C- 41.023, 40C-41.051(2) and 40C-41.063(6)(a), (b) and (d), and Handbook Sections 3.3.1(c) and (f), 11.0(e), 11.5.1, 11.5.2, 11.5.4, 18.1 and Appendix K are not supported by competent substantial evidence. In other words, they contend that the underlying factual predicate for the foregoing rules is unreliable, undependable, or untrustworthy. For the reasons cited in the findings in paragraphs 28- 63 it is found that the factual underpinning for Rules 40C- 4.041(2)(b), 40C-4.051(7), 40C-4.091(1)(a), 40C-41.011, 40C- 4.023, 40C-41.051(2) and 40C-41.063(a), (b) and (d), and Handbook Sections 3.3.1(c) and (f), 11.0(e), 11.5.1, 11.5.2, 11.5.4, 18.1 and Appendix K is sufficiently reliable, dependable and trustworthy so as to constitute competent substantial evidential support for their proposed adoption. Do Rule 40C-41.063(6)(d) and Handbook Section 11.5.4(d) Vest Unbridled Discretion in, and Contain Inadequate Standards to Guide, the District? Petitioners next argue that Rule 40C-41.063(6)(d) and Section 11.5.4(d) of the Handbook are invalid because they fail to establish adequate standards to guide the agency’s determination, and they vest unbridled discretion in the District to make certain determinations. A contention made in the initial petitions that the same rule and section are vague has presumably been abandoned since this ground is not cited in the prehearing stipulation or petitioners’ proposed orders. Subparagraph (6)(d)1. of the challenged rule and paragraph (a) of the section specify that, for those development activities which involve the "construction, alteration, operation, maintenance, removal, and abandonment of a system" within the RHPZ, an applicant "must provide reasonable assurance" that the system "will not adversely affect the abundance, diversity, food sources or habitat (including its use to satisfy nesting, breeding, and resting needs) of aquatic or wetland dependent species." In subparagraph (6)(d)2. and paragraph (b) of the rule and section, it is "presumed" that the following activities will "adversely affect the abundance, food sources, or habitat of aquatic or wetland dependent species provided by the Zone: construction of buildings, golf courses, impoundments, roads, canals, ditches, swales, and any land clearing which results in the creation of a system." Under subparagraph (d)4. and paragraph (d) of the rule and section, the presumption may be satisfied by an applicant demonstrating that the overall merits of the proposed plan of development, including mitigation as described in section 12.3, Applicant’s Handbook: Management and Storage of Surface Waters, provide a degree of resource protection to these types of fish and wildlife which offsets adverse effects of the proposed system on the uplands and wetlands within the zone. Some reasonable use of the land within the protection zone can be allowed under this section. Therefore, the presumption can be rebutted through considerations of subparagraph 6(d)4. and paragraph (d). As explained by the District, the term "overall merits" means that, in the review of the permit application, all of the impacts of the site plan to the surface water resource by the construction of the system will be reviewed. In other words, the District will review the "overall merits" of a system by balancing any detrimental impacts within the RHPZ with beneficial environmental aspects of the plan. The goal, of course, is to achieve a project design whose merits allow a development to proceed and also protect the beneficial functions of the RHPZ. For example, in areas of the development that are not proposed for development, the applicant can provide an ecological benefit by restoring or enhancing functions to a portion of the RHPZ. Where there are areas outside the RHPZ that would add further beneficial functions to aquatic or wetland dependent species, those areas could be set aside and incorporated into an overall protection plan that would be part of the site plan. The District will apply the new "overall merits" standard in a permitting scenario similar to the manner in which the current Wekiva and Econlockhatchee River Basin standards are now being applied. In those hydrologic basins, similar standards, including the "overall merits" criterion, have been applied by the District for a number of years without difficulty, and numerous activities have been authorized within their respective RHPZs. In fact, District records show that only two permits for activities within those basins have ever been denied, while more than 560 permits have been issued since the establishment of the two basins. Further assistance and clarification are found in the mitigation provisions in section 12.3 of the Handbook, which contains fifteen pages of guidance. Both the rule and section specifically provide that "mitigation as described in section 12.3" may be utilized by an applicant in meeting this standard. This provision enables an applicant to offset adverse impacts to the abundance, food sources, and habitat of aquatic or wetland dependent species within the RHPZ by proposing mitigation alternatives described therein. Petitioners contend that these mitigation alternatives are impractical since they do not allow for mitigating upland impacts and that section 12.3 now applies only to the Econlockhatchee and Wekiva River Basins. However, the District established that the use of the techniques described in Section 12.3 will be extended to the two new basins. As to the mitigation of upland impacts, Section 12.3.2.2(d) specifically refers to upland preservation as a mitigation option. It is also noteworthy that petitioners’ expert witness Exum conceded that he has utilized, without difficulty or misunderstanding, the same provisions when processing applications for permits in the Econlockhatchee and Wekiva Basins. Therefore, there are adequate standards within the rule and section to guide the District’s determination of the "overall merits" of an applicant’s proposed development plan. Likewise, that portion of the rule and section do not vest unbridled discretion in the District to determine whether an applicant has rebutted the presumption created by the standard. Petitioners next contend that the provision in Rule 40C-41.063(6)(d)4. and Section 11.5.4(d) which allows an applicant to make "some reasonable use of the land within the Protection Zone" contains inadequate standards and places unbridled discretion in the District. This provision, however, is found to be reasonably specific, given the fact that the amount of development which can be permitted can only be determined on a case-by-case basis after the District considers the specific nature of the unique characteristics of the site, including the proposed development, and the type of water resources that are adversely affected by the development. To establish a fixed percentage of development that would be permissible would be arbitrary. Moreover, the same provision has been fairly applied for a number of years in two other basins, and petitioners’ experts have successfully dealt with this issue without difficulty. Therefore, this portion of the rule and section contains adequate standards and does not vest unbridled discretion in the District. Finally, petitioners contend that the same rule and section vest unbridled discretion in the District to determine what is an "aquatic or wetland dependent species." The evidence shows, however, that petitioners’ witnesses Exum and Godly were aware of the meaning of this term of art, and they had a common understanding of its meaning. Further detail or definition of the term is unnecessary. Therefore, that portion of the rule and section does not vest unbridled discretion in the District. Whether Petitioners’ Lower Cost Proposal Substantially Meets the Statutory Objectives Being Implemented? The District prepared a Statement of Estimated Regulatory Costs (SERC) for the proposed rules, as required by Sections 120.54(3)(b)1. and 120.541, Florida Statutes (Supp. 1996). A summary of the SERC was published with the proposed rules on January 17, 1997, in the Florida Administrative Weekly. On February 6, 1997, Consolidated-Tomoka, but no other petitioners, timely submitted to the District a good faith, lower cost, regulatory alternative to the proposed rules. The District rejected this alternative proposal and provided a statement of its reasons for doing so. The parties have stipulated that the alternative would impose less regulatory costs on petitioners than are imposed by the proposed threshold revisions, recharge standard, floodplain storage criteria, stormwater management standard, and Riparian Wildlife Habitat Zone. Consolidated-Tomoka, joined in by all other petitioners, next contend that Rules 40C-4.041(2)(b) and 40C- 41.063(6)(a)-(d), and Handbook Sections 3.3.1(c) and (f), 11.5.1, 11.5.2, 11.5.3, 11.5.4, and 18.1, are invalid because the alternative cost proposal substantially accomplishes the statutory objectives purportedly being implemented through the proposed rules. More specifically, they contend that the current District rules, along with the existing OFW designation of Spruce Creek and the Tomoka River, already provide adequate protection to the water quality and quantity within the proposed basins, and thus the existing rules accomplish the same statutory objectives at a lower cost to petitioners. The proposed revisions to Rule 40C-041(2)(b) and Section 3.3.1(c) and (f) provide that non-exempt systems within the two new basins will be subject to the threshold revisions contained in the rule and section. Thus, they will bring into the ERP regulatory framework projects that now otherwise require only a stormwater permit under Chapter 40C-42. These projects now contribute to flooding and will continue to do so in the future absent a rule change. Because petitioners proposed alternative (of adopting no rule) does nothing to address the flooding caused by these projects, it does not substantially accomplish the statutory objective of protecting water resources. The statutory objective of the proposed recharge standard in Rule 40C-41.063(6)(a) and Sections 11.5.1 and 18.1 is to protect the District’s water resources by replacing groundwater withdrawn from the Floridan aquifer for public consumption with potable freshwater from rainfall. The evidence supports a finding that a need for recharge exists, and petitioners’ own expert agreed that recharge is necessary to maintain groundwater supplies. The alternative that no rule be adopted does not advance the statutory goal of protecting water resources. The statutory objective being implemented by the proposed floodplain storage standard in Rule 40C-41.063(6)(b) and Section 11.5.2 is the protection of water resources by reducing flooding. Under current conditions, flooding problems occur, and existing rules only address floodplain storage for the 10-year floodplain. The new criterion will prevent a decrease in floodplain storage in the 100-year floodplain. This in turn removes the loss of floodplain storage as a cause of flooding, thereby accomplishing the statutory goal. The new standard will ensure that future development will maintain more floodplain storage than is maintained under existing rules and thus create less future flooding potential. The proposal that no standard be adopted does not accomplish this objective. The proposed stormwater management standard in Rule 40C-41.063(6)(d)(c) and Section 11.5.3 implements the District’s statutory objective of protecting the water resources by minimizing the impact of malfunctioning detention with filtration systems on the OFWs in the proposed basins that receive discharges from such systems. Existing regulations allow systems within the proposed basins to utilize detention with filtration systems. Petitioners’ proposal does not prevent this from occurring or address the statutory objective of the law being implemented. Therefore, it is not an appropriate alternative. Finally, as to the RHPZ standard in Rule 40C- 41.063(6)(d) and Section 11.5.4, petitioners contend that the District’s current buffer requirements are sufficient to protect upland habitat utilized by wetland dependent species. They also contend that the establishment of the RHPZ exceeds the District’s delegated legislative authority and thus there is no statutory objective to be implemented. Finally, they argue that the establishment of the RHPZ will not lead to any significant enhancement of the water quality in Spruce Creek or the Tomoka River. As to this proposed standard, the District’s statutory objective is to protect water resources from harm. Aquatic or wetland dependent species are, of course, an integral component of the water resources. If urbanization pressures continue, the two basins will lose valuable habitat for aquatic or wetland species. Current ERP rules do not provide for the protection of the spatial requirements of aquatic and wetland dependent species, such as habitat and food sources, in order to maintain viable populations. Indeed, the current buffer merely provides a cushion to the wetland from the upland development, and it is not designed to maintain nesting habitat for those species. Moreover, current rules only protect the uplands for species that are listed and that use uplands for nesting and denning. Unlisted species receive no protection, and even listed species are not provided habitat necessary to maintain other life functions such as foraging. Therefore, a no-rule alternative does not substantially accomplish the statutory objective of preventing harm to water resources, including the aquatic or wetland dependent species. As noted in paragraph 23, the proposed standard exceeds the District's rulemaking authority. For the reasons cited in the Conclusions of Law portion of this Order, however, this does not mean that the rule cannot substantially accomplish the statutory objective. Therefore, the contention that the prior determination of invalidity mandates a similar determination here is without merit. Finally, as to the contention that the new standard will not lead to any significant enhancement of the water quality, the evidence shows that the standard is not intended to enhance water quality in the streams, and thus the argument is irrelevant.
Findings Of Fact Background Petitioner, David E. Musselman, is the owner of Lot 23, Block 22, Cudjoe Gardens Eighth Addition, Cudjoe Key, Monroe County, Florida. The lot measures 127 feet along its front and rear property line, 135 feet along its side property lines and, similar to adjacent lots, its rear property line abuts an artificially created waterway. Currently, most of petitioner's lot enjoys an elevation of six feet; however, from the edge of the waterway landward a distance of approximately 20 feet [to what has been referred to as the "toe of the existing slope" in these proceedings] the surface consists of exposed caprock at an elevation of approximately four inches above mean high water. It is petitioner's desire to construct a single family residence upon such lot and, incident to such construction, to erect a seawall along the edge of the waterway such that the elevation at the waterway will be increased by two feet, and to backfill from the seawall to his home. Such backfilling would require the deposition of approximately 3,540 square feet of fill within the Department's jurisdiction, which was shown to extend from the edge of the waterway to the toe of the existing slope, and would raise the elevation in such area two feet above existing grade. On December 16, 1991, petitioner filed an application with respondent, Department of Environmental Regulation (Department), for an exemption from the Department's wetland permitting requirements. If approved, such exemption would allow petitioner to construct the vertical seawall along the waterway, and backfill from the seawall to his proposed home. By notice of agency action dated February 14, 1992, the Department proposed to deny petitioner's application predicated on its conclusion that his proposal did not meet the exemption criteria established by Rule 17- 312.050(1)(g), Florida Administrative Code. Petitioner filed a timely protest to contest the Department's conclusion. The exemption Pertinent to this case, Rule 17-312.050(1)(g), Florida Administrative Code, exempts from permitting the following activities: (g) Construction of seawalls or riprap, including only that backfilling needed to level the land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control. An artificially created waterway shall be defined as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems . . . . At hearing, the parties stipulated that the waterway which abuts the rear property line of petitioner's lot is an artificially created waterway, as well as an existing residential canal, and that the proposed project will not violate existing water quality standards, impede navigation, or adversely affect flood control. Notwithstanding, the Department contends that petitioner's application should be denied because no need has been demonstrated that would support the construction of the seawall along the edge of the waterway, as opposed to locating it further inland, and therefore the amount of backfill, with its attendant loss of wetlands, is excessive. For the reasons set forth in the conclusions of law, the Department's position is untenable as a matter of law. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order approving petitioner's application for an exemption to construct a seawall, and to backfill from such seawall to his proposed home, as applied for. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. WILLIAM J. KENDRICK 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 4th day of June 1992.
Findings Of Fact On September 13, 1977, SFWMD advised Coquina by letter that "[a]t its September 8, 1977 meeting the Governing Board of this District gave Conceptual Approval of [Coquina's] surface water management plan . . . subject to the four special conditions found on page 15 of the District's staff report. . . [and an] additional special condition Joint exhibit No. 5. The first special condition found on page 15 of the District's staff report requires that complete construction plans be submitted, including "supporting calculations for all design elements not already submitted and any other plans necessary to assure adherence to the concept plan." Joint exhibit No. 2, page 15. The plan approved by SFWMD is designed to lower the water table in a 22 square mile area northwest of Lake Okeechobee in Okeechobee County. In its natural state, the land lies under water for part of the year. The corporate owner of the land has plans to subdivide it and sell residential lots, beginning with the four contiguous sections as to which the present application for a construction permit has been made. These four sections (phase I) lie north and south of each other in the western portion of the larger tract. The proposed construction would consist of digging ditches or swales paralleling existing and planned roads; building intersecting collector swales running north and south; installing ditch checks where swales intersect; dredging a retention pond into which the collector swales could empty at the south end of the phase I tract; digging an outfill ditch to channel water leaving the retention area for Ash Slough; and erecting a weir, between the retention area and the slough. Culverts through the weir would be equipped "with standard flash board risers in which the water level is regulated by stop logs which can be added or removed," Coquina's exhibit No. 1, p. 10, and the culverts would ordinarily serve as the route by which water from the retention area would reach Ash Slough. Under extremely wet conditions, however, water from the retention area could overflow the weir. The intervening petitioners own land on Ash Slough downstream from the retention area and adjacent to the southern boundary of the phase I tract. No formal studies of the likely effects of the proposed construction downstream were undertaken by Coquina or by SFWMD in evaluating Coquina's application. The surface water management plan given conceptual approval by SFWMD provides: The quantity of runoff flowing to the south through existing sloughs will be controlled to protect the downstream areas against flooding whereas at the present there is no control. The amount flowing to the existing sloughs to the south during the 25 yr. design storm will be limited to the amount flowing to those sloughs before any development takes place. Lesser storms will be more completely retained on the property. Controlled discharge will be provided from retention areas to the existing sloughs for the purpose of nourishing these streams. Coquina's exhibit No. 1, p. 1. (Emphasis supplied) Since no records of the amount of discharge to Ash Slough "before any development" are in existence, certain assumptions and estimates were made. One such assumption on which the application for construction permit proceeds is that the phase I tract all drains to the south, in its present state. In fact, some of the water now leaving the phase I tract travels in a westerly direction and never enters Ash Slough, at least under some weather conditions. If the proposed construction is accomplished, the phase I tract would all drain to the south through Ash Slough. As things now stand, a significant amount of water leaves the phase I tract by evapotranspiration. If the water table were lowered two and a half feet, which is what Coquina proposes, less water would leave the phase I tract by evapotranspiration, leaving more water to flow over the ground. In estimating the quantity of the anticipated discharge to Ash Slough, if the proposed construction takes place, it is necessary to take into account drainage onto the phase I tract from adjoining lands. Coquina has failed to furnish plans and supporting calculations sufficient to insure that the proposed construction will not increase the amount of flow to Ash Slough during the 25 year design storm. Increased flow to Ash Slough would aggravate downstream landowners' drainage problems, unless the slough could handle the additional flow, a question which the application does not address. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 34O So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny Coquina's application for construction permit. DONE and ENTERED this 14th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Paragraph one of intervening Bass petitioners' proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not demonstrate that downstream landowners would in fact be harmed. Paragraphs two, three, four, five, six and seven of intervening Bass petitioners' proposed findings of fact have been adopted, in substance, insofar as relevant. Paragraph one of respondent Coquina's proposed findings of fact has been adopted, in substance, insofar as relevant, except for the date of the application. Paragraphs two, three, four, five, six, seven, eight, nine and thirteen of respondent Coquina's proposed findings of fact have been adopted in substance, insofar as relevant. Paragraph ten of respondent Coquina's proposed findings of fact stated a conclusion of law, in part. While "testimony was presented that the construction of Phase I would have no substantial adverse affect [sic] on surrounding properties," the evidence as a whole did not establish this fact. Paragraphs eleven and twelve of respondent Coquina's proposed findings of fact have not been adopted because they were not established by the evidence, except for subparagraph eleven (f), which was proven. COPIES FURNISHED: John Henry Wheeler, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Robert Birenbaum, President Viking Communities Corporation (Coquina Water Management District) 123 Northeast 70 Street Miami, Florida 33138 Kyle S. Van Landingham, Esquire County Attorney Okeechobee County Courthouse Okeechobee, Florida 33472 Andrew B. Jackson, Esquire J.C. Bass & Bass Ranch, Inc. Post Office Box 488 Lake Placid, Florida 33852 Emerson Allsworth, Esquire 1177 Southeast Third Avenue Ft. Lauderdale, Florida 33316 Mr. Bob Wittenberg Division of Florida Land Sales and Condominiums The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Dr. Patrick M. McCaffrey Kissimmee Coordinating Council 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. George Stansbury Central Florida Regional Planning Council Post Office Box 2089 Bartow, Florida 33830
