Findings Of Fact In 1950, Petitioner acquired lots 8 and 9, block 23, of Lone Palm Beach subdivision, third addition, which lots front on Boca Ciega Bay in Pinellas County, and she has held the property in free simple since. Petitioner's late husband, her predecessor in title, acquired the lots in 1941. They constitute the tip of man-made peninsula jutting bayward from a barrier island bordered on the other side by the Gulf of Mexico. In 1926, the lots did not exist as such, because the peninsula had not yet been built. Petitioner's exhibit No. 10. Since the creation of the lots, their aquatic periphery has varied continually, on account of accretion and reliction. In the first half of the last decade, wooden and metal stakes were sunk along the shoreline, landward of the water's edge. Since then, water has washed away Petitioner's beach, moving the shoreline inland an average distance of approximately thirty feet. Erosion has been more severe along the northern half of Petitioner's beach than along the southern half. Seawalls have been built along adjacent properties on either side of Petitioner's parcel. The evidence did not establish what proportion of this erosion may have been attributable to the effects of Hurricane Agnes or to the location of neighboring seawalls or to any other particular cause. In 1972, the Honorable C. Richard Leavengood, Petitioner's present husband, hired Rupert Osteen, a contractor, to build a seawall. Pinellas County issued a building permit to Mr. Osteen, covering a "Seawall - 356LF - Type D," Petitioner's Exhibit No. 5, on March 14, 1973. (In September of 1951, the Town of Redington Beach had issued a building permit for "Dredging and Filling behind Sea Wall Constructed on [what is now Petitioner's] Rear Property Line.") Construction began, but came to an abrupt halt in July of 1973, when Mr. Osteen was arrested for building a seawall "without having obtained the recommendation of the Chief of Engineers and the Authorization of the Secretary of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United States District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19, 1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United State District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19,1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army for a permit, pursuant to Sections 403 and 1344 of Title 33, United States Code. Petitioner applied for the "after the fact" permit at issue in these proceedings on May 10, 1974. At one point in the course of negotiations between Petitioner and Respondent, Mr. Douglas Jones, Chief of Respondent's Bureau of Permitting, indicated that Respondent would permit Petitioner to erect another seawall along the present mean high water line. Eventually, Respondent's staff notified Petitioner that it would recommended denial of an after the fact permit for the existing seawall, and Petitioner filed a request for administrative hearing, which initiated these proceedings. Aerial photographs dating back to 1942 were received in evidence. Respondent's Exhibits Nos. 5 through 11. None of these phontographs show land as far out in the water as the portion of the seawall Mr. Osteen finished. The partially completed seawall is further waterward tan the 1971 interface between land and water. Respondent's Exhibits Nos. 9 and 10. In November of 1973, Alan J. Burdette, Jr., a marine biologist, who is now employed by Respondent, inspected lots 8 and 9 of Lone Palm Beach subdivision and found water in the low area landward of the seawall. More recent photographs indicate that the seawall still stands somewhat offshore. E.g.., Respondent's Exhibit No. 16, taken on September 7, 1977. Mr. Bardette's inspection revealed oyster and fiddler crabs inside the seawall and clams just outside. Mangroves, which were not there at the time construction began, had sprung up. Removal of the seawall would create additional shallow bottom where algae, clams, oysters, mangroves and other marine life could flourish. Mr. R. S. Murali, a hydorgraphic engineer employed by Respondent, visited Petitioner's property the day before the hearing in this matter was held. While he was on the site, the wind blew from the southwest and waves with an average height between eight and nine inches struck Petitioner's unfinished seawall every 1.2 seconds. Mr. Murali discovered evidence of erosion under the seawall, which was caused by wave action. If the seawall were placed more landward, so that waves travelled up a sloping beach before striking it, the erosion problem could be significantly alleviated.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner's application for an after the fact fill permit authorizing the seawall which has already been constructed around lots 8 and 9, block 23, of Lone Palm Beach Subdivision, third addition, be denied. DONE and ENTERED this 30th day of November, 1977, 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 Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant:. Paragraph two of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant, except for the date of the permit issued by the Pinellas County Water and Navigation Control Authority, which is immaterial. Paragraph three of Petitioner's Proposed Findings of Fact is apparently predicated on Petitioner's Exhibit No. 12, an uncertified copy of page 74 of Pinellas County's Plat Book 20. Although a handwritten notation on the exhibit reads "Plat Recorded June 21, 1937" such extraneous handwriting on an uncertified copy is not "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.". Section 120.58(1)(a), Florida Statutes (1975). The question of the Butler Act's applicability is a question of law rather than of fact and it has not been necessary to decide the question. Paragraph four of Petitioner's Proposed Findings of Fact has not been adopted, for the most part, because of lack of support in the evidence. Paragraph five of Petitioner's Proposed Findings of fact emphasizes that the testimony as to flora and fauna related to a time considerably after application for the after the fact permit was made. While this is true, what is at issue is the ecological consequences of leaving the seawall, so that the relevant time period is the time period beginning when the application was made and extending indefinitely into the future. COPIES FURNISHED: Ms. Carol Haughey, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. Ross H. Stanton, Jr., Esq. 280 Florida Federal Building 26274th Street North St. Petersburg, Florida 33704 Ms. Patricia M. Duryee, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DOROTHY B. LEAVENGOOD, Petitioner, vs. CASE NOS. 77-484 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondents. /
The Issue The issue in this case is whether the development order issued by Polk County for Robert Crowder's development known as Paradise Country Estates complies with Chapter 380, Fla. Stat. (1991). The Department of Community Affairs' Petition for Appeal of Development Order (the DCA Petition) alleges that the development order is contrary to Polk County's 1985 comprehensive plan for the following reasons: Paragraph 11 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 9, Objective III, "Natural Resources," of the Land Use Element (LUE) of the 1985 Plan. Policy 9 states: "Structures should be placed in a manner which will not adversely affect the natural flow regime and which will not reduce the recharge capabilities." Paragraph 12 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 10, Objective III, "Natural Resources," of the LUE. Policy 10 states: "Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973." Paragraph 13 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 11, Objective III, "Natural Resources," of the LUE and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element of the Plan. Respectively, these policies state: 11. Groundwater withdrawal should not exceed the safe yield per acre as determined by Water Management Districts or successor agencies. * * * Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Paragraph 14 of the DCA Petition alleges that the development order is contrary to a section of Part II of the Conservation Element of the Polk County Comprehensive Plan entitled "Rare and Unique Natural Resources," which describes the Green Swamp as a "rare and unique land area resource for conservation consideration" and also states: The potentiometric high of the Floridan Aquifer lies within this area. . . . The area has a high potential for recreational and natural enjoyment. . . . The Green Swamp area is the largest expanse of forest in Polk County, with abundant water and wooded areas to provide for wildlife habitats. This area has great significance as an area for conservation of land, air, water, open space and wildlife habitats. Paragraph 15 of the DCA Petition alleges that the development order is contrary to the following section on "Density" found in Part IV of the Conservation Element, entitled "Summary of Special Problems, Areas, Issues, and Relationships": The subject of development density is a particular issue of vital importance to the county. Low density development in some areas and high density in other areas is important so that demands for public facilities can be economically and efficiently handled, so that environmental degradation is minimized, and so that land, not suitable for development, can be saved for important natural functions. The present zoning ordinance classifies most of the county in a Rural Conservation (RC) classification that permits low density development without proper regard for those areas that are best suited for development. Portions of the county should be protected from development pressures and appropriate areas should be zoned to accommodate rational densities. The present level of protection, provided by the zoning system is not brought to bear for conservation purposes. Paragraph 16 of the DCA Petition alleges that the development order is contrary to Policy 14 of the "Water Resource Objective" of the Conservation Element of the Plan: "Protect or improve existing ground and surface-water quality." Paragraph 17 of the DCA Petition alleges that the development order is contrary to Policy 2, Objective I, "Agricultural Uses," in Part V of the LUE: Protect, to the maximum extent possible, agricultural lands from encroachment of incompatible land uses and any detrimental effects of development adjacent to agricultural areas. Paragraph 19 1/ of the DCA Petition alleges that the development order is contrary to Policy 2, Objective IV, "Residential Uses," in Part V of the LUE: Promote and encourage new residential development adjacent to established growth centers, to ensure the orderly use of land and the efficient provision of facilities and services. Paragraph 20 of the DCA Petition alleges that the development order is contrary to Section 5-1(6) of Polk County Ordinance 81-28 (the County Flood Protection and Surface Water Management Code). 2/ Article V is entitled "Flood Protection Standards." Section 5-1 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to new construction and substantial improvements in all areas of special flood hazard, and to any development, other than phosphate mining, within 100 feet of a watercourse: * * * (6) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. Paragraph 21 of the DCA Petition alleges that the development order is contrary to Section 5-2(4) of Polk County Ordinance 81-28. 3/ Section 5-2 provides in pertinent part: SPECIFIC STANDARDS: The following minimum standards shall apply in all areas of special flood hazard where base flood elevation data has been provided: * * * Subdivision Proposals: All subdivision proposals and other proposed developments shall be reviewed by the County Engineer. [I]f the proposal is in an area of special flood hazard, it shall be reviewed to assure that the following standards are met: All such proposals shall be reasonably safe from flood waters resulting from the base flood. All such proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage. Base flood elevation data shall be provided for all such proposals. Roads shall be reasonably safe from flood waters resulting from the base flood. Paragraph 22 of the DCA Petition alleges that the development order is contrary to Section 6-2(3)(a) of Polk County Ordinance 81-28. Article VI of Polk County's Flood Protection and Surface Water Management Code is entitled "Water Management Standards." Section 6-2 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to all development which occurs within an area of special flood hazard and to any man-made change to improved or unimproved real estate . . .. * * * (3) (a) The amount of site alteration within a wetlands soil association shall be limited to ten percent (10%) of the area of wetlands soil association within any given total site.
Findings Of Fact The Proposed Project and Location. The project site is on Dean Still Road in Polk County, approximately 2 miles west of State Road 33. It is approximately 6 and 1/2 miles from Polk City and 15 miles from the City of Lakeland. The proposed project is comprised of 356 lots on approximately 1280 acres with a gross density of 1 unit per 3.6 acres. Although the average lot size varies, the project was reviewed under the Southwest Florida Water Management District's (SWFWMD) criteria for rural development which requires that at least 90% of the lots be at least 2 acres in size (excluding jurisdictional wetlands), and 10% of the lots be at least 1 acre (excluding jurisdictional wetlands). The site has been zoned Rural Conservation under Polk County's Zoning Code for approximately 12 years. This designation allows a density up to 1 unit per acre. Individual water wells and on-site waste disposal systems (septic tanks) will be utilized for each home. There are no water or sewer extensions proposed for the site or for adjacent areas by any governmental entity. Access to the site from Polk City is along Dean Still Road, which is unpaved at this time. The County has plans to pave it in the near future. Of the 1280 acres comprising the project site, 362 acres have been claimed as jurisdictional wetlands and approximately 642 acres have been mapped within the 100-year floodplain by the Federal Emergency Management Agency (FEMA). 51 of the lots platted in the project are entirely within the FEMA 100- year flood plain. Several other lots contain large portions within FEMA 100- year flood plain. Despite the significant amount of wetlands and floodplains on the site, the project is designed so that no net loss will occur in the floodplains and less than 1% (.59%) of the jurisdictional wetlands will be impacted by development. Impervious conditions on the site will only increase by 2.8% after development. All structures will be set at or above the 100 year flood elevation, as calculated by the project engineers, and will be constructed in accordance with the County's flood protection standards. The project is designed so that post-development runoff is less than pre-development runoff and post-development drainage basins conform to pre-development drainage basins. Existing drainage patterns for the site are designed to be maintained. The property comprising the project has been used through the years for a variety agricultural purposes, including harvesting watermelons, soybeans, corn, and silage. It has been drained and ditched to facilitate these activities. It is currently being used for grazing cattle. A sod farm is located to the south of the property. Additional cattle grazing lands run south from there to Polk City. To the north of the site are ranchlands which run to the border of the Withlacoochee Wildlife Area. Immediately to the west of the site are 20-30 scattered mobile homes and additional ranchlands in a subdivision known as Evans Acres. This subdivision was initially approved by DCA in 1983, and was comprised of 48 lots on approximately 1,290 acres. The original lots ranged in size from 5 to 60 acres. Apparently, individuals have since split their lots and many of the existing lots are 2 to 5 acres in size. A few of the original lots are used for both residential and ranching purposes. Including the large and small lots, there are approximately 163 lots on the property comprising Evans Acres. On the property directly to the east of the site are approximately 16 mobile homes along Melody Lane. These existing homesite numbers are small and scattered when compared to the 356 lots proposed for Paradise Country Estates. Approximately 120 families live in the general vicinity of the proposed project. The Green Swamp. The project is within the Green Swamp Area of Critical State Concern (ACSC). The site is within the drainage basin of the Withlacoochee River, which has been designated an Outstanding Florida Water (OFW) and is approximately three and a half miles to the north. The Green Swamp ACSC was designated by the Legislature. Chapter 79- 73, 380.0551, Florida Statutes (1991). It was the second area to be designated and now is one of only four areas in the State retaining this designation. The Green Swamp was designated because the area's natural resources were considered to be of regional and statewide importance and because of concerns that uncoordinated development could endanger these resources. The Green Swamp is a regionally significant area for recharge of the Floridan Aquifer. The Green Swamp is unique because the top of the Floridan Aquifer is at or near the surface over much of the area. This creates what is known as the potentiometric high of the Floridan Aquifer. The potentiometric high pressurizes the Floridan Aquifer, permitting it to be used for drinking water wells. The Florida Aquifer serves as the principal source of drinking water for central Florida. It supplies the entire State with about 48 percent of its ground water supply. The potentiometric high also serves to hold back salt water intrusion into the Floridan. Recharge is important in maintaining the potentiometric high of the Floridan Aquifer. Although the Green Swamp has been characterized as a recharge area for the Floridan Aquifer, the actual recharge capabilities of the Green Swamp vary considerably throughout the region. Some areas within the Green Swamp, such as the high, dry, sandy ridge on the eastern boundary of the Green Swamp clearly are high recharge areas. In some areas, the Floridan Aquifer rises essentially to the ground surface, with no confining layer above it. In those areas, a considerable amount of surface water filters into the Floridan Aquifer. In other areas, including in the vicinity of the project site, recharge capability is considerably less. See "G. Review under the 1985 Plan and the Flood Protection and Surface Water Management Code, (3) Ground Water Recharge." The head waters of several rivers, including the Withlacoochee River, are in the Green Swamp. Polk County's Comprehensive Plan. Polk County's Comprehensive Plan, as amended by Polk County Ordinance 85-08 (Ordinance 85-08), is referred to as Polk County's 1985 comprehensive plan, or the 1985 plan. It includes a Land Use Element (LUE) and a Conservation Element. The Land Use Element. The 1985 Plan is a "policy plan." As a "policy plan," the LUE does not map land use classifications or densities or intensities of development. The different parts of the plan must be considered together to ascertain their meaning. As stated in the Foreward to the LUE: The Policy Plan is a flexible and realistic guide to future public decisions. Existing conditions are first determined and analyzed. Then, community goals are identified providing a process of finding out where we are and where we want to go. * * * . . .. The challenge is to determine the means of achieving the identified community goals at minimal cost and the least possible hardship on any segment of our society. Under the policies planning process this is accomplished by developing all possible alternative courses of action that will advance the community toward the desire goal. The policies are then a general statement of purpose and outlining broad principles toward which the plan is guided in the implementation stage. A policy plan does not detail specific actions or locations on a map. Rather it provides a broad framework within which day-to-day decisions are made in a consistent manner toward an identified goal. The ultimate product of those community goals will be the heritage of Polk County's future. At 4-2, the LUE discusses the need to give attention to "the proper distribution of population densities in keeping with sound planning practices, the physical capabilities of the land, and the relationship of the population and housing densities to existing or proposed transportation facilities and other community services." It then speaks to "Retention of Open Spaces": A second potential problem to be faced, as urban growth continues, is the potential loss of the open space characteristics that now contribute substantially to its desirability as a community in which to live and visit. To a large extent, the desirable characteristics are provided by extensive agricultural areas. Such uses are compatible with residential and other types of urban land uses and should be encouraged to remain to the maximum extent possible. Desirable open space is also presently provided by . . . wetland areas not suited for urban development. By encouraging such areas to remain in their present condition, a substantial amount of open space can be retained to provide the needed visual relief and openness necessary within a highly urbanized community. At 4-5, discussing "Retention of Unique Agricultural Lands," the LUE states that cattle raising and field crops are subject to potential intrusion by urban development and states: "The development of planning techniques, which will encourage the retention of important agricultural lands and provide for orderly urban development, thus becomes a matter of considerable importance." The Goals, Objectives, and Policies (GOPs) of the LUE starting at 5-1 include the following: General Goal: To maintain productive and mutually compatible use of lands and waters within Polk County in a manner consistent with the economic, physical and social needs, capabilities, and desires of Polk County and its citizens. Objective I - Agricultural Uses: To ensure that a sufficient quantity of appropriate lands are available and protected for productive agricultural uses necessary to a sound economic base. Policies: * * * 2. Protect, to the maximum extent possible, agricultural lands from encroachment of incompatible land uses and any detrimental effects of development adjacent to agricultural areas. * * * 5. Provide all possible incentives for the retention of lands into agricultural production. * * * Objective III - Natural Resources Minimize adverse impacts of development on valuable natural resources including the protection of water quality and quantity in surface and ground waters. Policies: * * * 2. The subdivision and platting of land shall be permitted in accordance with the zoning district applied to the property and in compliance with the Polk County Subdivision Regulations and Flood Protection/Surface Water Management Ordinance. * * * Site alteration should be permitted only when such alteration will not adversely affect the natural flow regime or the natural recharge capabilities of the site. Site alteration should be permitted only when such alteration will not result in the siltation of wetlands or reduce the natural retention and filtering capabilities of wetlands. Site alteration activities should provide for water retention and settling facilities; should maintain an overall site runoff equivalent to the natural flow regime prior to alteration and should maintain a runoff rate which does not cause erosion. * * * Storm water runoff should be released into the wetlands in a manner approximating the natural flow regime. Structures should be placed in a manner which will not adversely affect the natural flow regime and which well not reduce the recharge capabilities. Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973. Groundwater withdrawal should not exceed the safe yield per acre as determined by Water Management Districts or successor agencies. Objective IV - Residential Areas To ensure that an adequate supply of appropriately located lands are available for the development and maintenance of residential areas that can be efficiently and effectively provided with necessary public facilities and services. Policies: Promote and encourage the provision of a wide range of housing opportunities, in appropriate locations, to permit a choice of housing types to suit the particular needs of all citizens. Promote and encourage new residential development adjacent to established growth centers, to ensure the orderly use of land and the efficient provision of facilities and services. * * * Encourage new residential development that can be effectively served by the existing transportation facilities. Promote new residential development in non-urban areas, that is properly designed to combine with future adjacent development, to create a neighborhood of sufficient size to facilitate the efficient and effective provision of all necessary public facilities and services. Part VI of the LUE, entitled "Alternate Approaches," discusses the pros and cons of different concepts for planning and managing of growth. It settles on a "Resource-Responsive Concept" as the preferred growth alternative. This concept holds in part: Wherever possible, future growth should be encouraged to take place in or near established urbanized areas. Scattered growth incapable of functioning as meaningful self-contained communities should be discouraged. And it is preferable that the urbanizing area, as it extends over extensive areas within the County, not be developed in one continuous, monotonous maze of residential, commercial, and industrial uses - but that there be open space provided at appropriate intervals so as to provide visual relief and a sense of scale to the overall urban community. Such open space areas can be productively utilized for agricultural and conservation purposes or recreation areas, public facilities and services required. It is proposed that the most appropriate urban growth concept to meet such guide-lines and the policy statements of this land use plan be a resource-responsive growth concept. Under this concept, urban growth and development will be guided and encouraged with respect to its responsiveness to the natural and human resource capabilities of the County. Within any given area of the County, the resources will be careful evaluated in terms of their capability to support growth, and the physical form and intensity of development will be then shaped to provide the physical form and intensity of development will be then shaped to provide a balance with such resources. Prime resources to be considered are as follows: Natural Resources Topography and soil conditions Vegetation and tree cover Wildlife habitats present Drainage characteristics; relationship to rivers and lakes Natural water supply capabilities General aesthetic qualities Human Resources Transportation facilities (roads, railroads, airports) Available water supply and sewage facilities Community facilities, such as schools, parks, libraries Protective services, such as fire and police Established land uses within the area Economic conditions and potentials. Part VII of the LUE, entitled "Implementation," states: "Initial implementation of a Comprehensive Plan and initiation of the continuing planning process for growth management requires the establishment of principals and standards for measurement of proposed activities against the adopted policies of the community." It includes a section entitled "Principles and Standards for the Control and Distribution of Population Densities and Structural/Development Intensity," which provides in part: All Types of Urban Development: * * * Each new development or land use should follow sound land planning principles to maximize site advantages, avoiding when possible, adverse impacts on the natural resources and hazards to health, safety, or general welfare. * * * Residential Development: Low-density single-family development (1-4 units/acre), other than rural residences related to agricultural operations, shall be located in areas capable of being developed into stable, cohesive neighborhoods. In a section entitled "Legal Requirements of Implementation," it states that "all actions taken by local government, whether in the form of permitting private development to occur or in the provision of public facilities and services, are required to be fully consistent with the adopted Comprehensive Plan. The plan, once adopted, must occupy a central position in the consideration of all proposed development." In another section, entitled "Coordination with Other Plan Elements," it states that the "land use element cannot be implemented alone [but] must be coordinated with the [other elements]." In another section, entitled "Needed Improvements in the Zoning Ordinance," it is recognized that "it will be essential that a thorough review of the zoning ordinance be undertaken and that the ordinance be revised as appropriate to achieve consistency with overall planning objectives." It acknowledges that there were "major identified deficiencies in the current zoning regulations" and advises that "the following needs among others should be addressed as a minimum in making revisions to the zoning ordinance": "Revision of the Density Requirement in Residential Districts." Despite the admonitions in the 1985 Plan, to date there has been no revision of the land use classifications, densities, or intensities in the County's zoning code. As before the 1985 Plan was adopted, zoning in the Green Swamp ACSC remains Rural Conservation (RC) and allows up to one unit per acre residential development. The Conservation Element. Part II of the Conservation Element of the Polk County Comprehensive Plan is a "Summary of Natural Resources." At 2-18, there appears a section entitled "Rare and Unique Natural Resources," which describes the Green Swamp, as well as other natural resources in the County, as a "rare and unique land area resource for conservation consideration." At 2-19, as amended by Ordinance 85-08, this element of the comprehensive plan also states: This area comprises the hydrologic heartland of Central Florida and contains the headwaters of the Withlacoochee, Hillsborough, Peace and Oklawaha Rivers. The potentiometric high of the Floridan Aquifer lies within this area. . . . The area has a high potential for recreational and natural enjoyment. . . . The Green Swamp area is the largest expanse of forest in Polk County, with abundant water and wooded areas to provide for wildlife habitats. This area has great significance as an area for conservation of land, air, water, open space and wildlife habitats. Part IV of the Conservation Element is a "Summary of Special Problems, Areas, Issues, and Relationships." Starting at 4-2, it addresses the following: Displacement . . .. Cities in Polk County have historically developed on the ridges and the urbanized areas are spreading outward rapidly into the prime citrus lands and the "marginal" (flood prone) lands. There is considerable concern about urban development in wetland soils and flood prone areas. The double barreled concern for development in wetland soils and wetland areas is that they might well serve valuable natural functions and the private and public problems created by development subjected to flood damages. This property damage promotes public pressure for drainage in wet areas. The issue in wetland drainage and flood control is the jeopardy of natural functions that wetlands and water fluctuations provide in natural systems and flood damage costs. . . . [C]oncern for the growing demand for uplands development which steadily displaces [good pasture land] . . . relate[s] to the use of good pasture land for development. Density The subject of development density is a particular issue of vital importance to the county. Low density development in some areas and high density in other areas is important so that demands for public facilities can be economically and efficiently handled, so that environmental degradation is minimized, and so that land, not suitable for development, can be saved for important natural functions. The present zoning ordinance classifies most of the county in a Rural Conservation (RC) classification that permits low density development without proper regard for those areas that are best suited for development. Portions of the county should be protected from development pressures and appropriate areas should be zoned to accommodate rational densities. The present level of protection, provided by the zoning system is not brought to bear for conservation purposes. * * * Water * * * Another area of concern relates to the draw down and recha[r]ge of the Floridan Aquifer and is claimed to be a rational concern of an area much larger than Polk County. * * * Pollution Environmental pollution, as it relates to water, is a major local concern. * * * Water pollution is concerned because of its effects on recreation and tourism. Water degradation and the pollution of lakes and rivers tends to remove the intangible value that Polk County enjoys in thee form of its surface water resources. * * * Also, the related cost issues of municipal sewage treatment and disposal, effluent disposal techniques, septic tank useage are environmentally economic choices to be made by the public. Discussing the topic, "Preservation and Management," starting at 4-4, Part IV of the Conservation Element states in part: Many issues relate to what, how, or when something should be conserved. * * * Lakes, rivers and canals of the county are of concern as sources of flooding and as resources for flood control, if properly managed. Flood prone areas surrounding surface water have been identified for much of the county. These water bodies are also legitimate concerns as the habitat for fish and other wildlife that provide a significant value in their own right. The area of these water bodies are also special scenic and recreational values that contribute to tourism and development. Part V of the Conservation Element is where the "Goals, Objectives and Policies" are found. It start with some general observations, including in part: . . .. It can be expected, therefore, that the natural environment of the county will continue to undergo modification of one type or another in response to the needs of people. . . . The inventory of total space will, therefore, diminish as these changes take place, resulting in corresponding losses within particular categories of natural resources. What is important is that no critical loss of impairment of a natural resource take place; that development be managed so as to create minimum disturbance of the remaining natural resource systems; and that there be compensation replenishments of resources wherever possible. It then lists a General Goal and several resource-specific objectives and policies: General Goal: Maintain, protect, develop and utilized the natural resources in a manner that will balance and replenish the natural ecological systems and will best serve and promote the desired quality of life for Polk County resident, present and future. * * * Water Resource Objective: To conserve and protect the quality and quantity of water resources through proper management. * * * 6. Identify and protect significant acquifer [sic] recharge areas for maximum recharge capability and protect the water available for aquifer recharge. * * * Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the functions of the Potentiometric High of the Floridan Aquifer. Prevent further salt-water intrusion into the Floridan Aquifer. Protect or improve existing ground and surface-water quality. Protect the water retention and biological-filtering capabilities of wetlands. Protect the natural flow regime of drainage basins. Rare and Unique Natural Resource Objective: To conserve and protect, through proper resources management, areas having unique natural characteristics and particularly sensitive environmental balance. * * * Policies: Identify all significant areas in Polk County deemed to have unique natural resource characteristics. Encourage proper management of unique wetland areas of the County as a vital water resource. Encourage a proper system for control of development in flood prone and wetland areas to regulate alternation [sic] of the natural system of water retention and storage during periods of heavy rainfall. Preserve and protect, to the maximum extent possible, all delineated areas having valuable unique resource characteristics. Part V of the Conservation Element concludes with a "Summary," which states in part: The objectives and policies set forth above should not be considered as controls to be rigidly applied in every instance of decision-making dealing with the natural environment. Rather, in dealing with resource conservation issues, guidance is preferable to control. . . . A number of potential implementation actions and programs, presented in the following part, will further assist in establishing the direction and scope of conservation activities in the County. Part VI of the Conservation Element is entitled "Implementation." While acknowledging at 6-1 that Polk County cannot establish an implementation program unilaterally, without regard to the co-responsibilities of other governmental authorities at the regional state and federal levels, it states at 6-2 that Polk County "can and should": Utilize the general objectives and policies established by this Element as considerations in all decision making concerning the use and improvement of land within the County. * * * 3. Utilize, to the fullest extent possible, the policies and implementation controls of other elements of the Polk County Comprehensive Plan, and those of other governmental entities having jurisdiction, to further the conservation of natural resources. Starting at 6-3, Part VI discusses the Conservation Element's "Relationship to Other Plans." At 6-4, after stating that the Conservation Element will be largely implemented through the policies and programs of other comprehensive plan elements, Part VI provides: Land Use Element - This element will provide the overall framework for conservation [sic] potentialities through the manner in which land uses are distributed, arranged, and interrelated throughout Polk County. Policies and implementation programs of this element will determine the degree to which new development is properly related to soil types and capabilities, natural habitats, flood prone areas, wetlands and unique resource areas of the County. Land regulatory controls such as zoning, subdivision regulations and development impact reviews provide the basic tools for implementation of the policies of the Land Use Element. Starting at 6-5, Part VI discusses "Guidelines for Implementation." At 6-5, it points out: The nature of conservation policy, being of such broad application and diversity of interest, requires that its effective implementation utilize many approaches, techniques and procedures. Its application is carried out, for the most part, in an indirect way as a by-product of other more direct decisions and actions relation to the development and growth of the County. It is essential, therefore, that Polk County draw upon all possible alternative mechanisms and techniques which will lead to the effective conservation of its natural resource systems. Among the various approaches which Polk County may utilize to further its conservation objectives are the following. * * * Influence in the allocation of resources to achieve the objectives of the conservation plan. Control of events which determine resources allocation in keeping with the conservation plan. * * * Specific procedures and techniques which may be utilized to facilitate the implementation process include the following. * * * 7. Protect natural water bodies and adjacent wetland areas through the regulation of development densities and proper management of stormwater runoff. This would require a cooperative effort with the Water Management Districts in identifying flood plains for various flood frequencies. Polk County's Flood Protection and Surface Water Management Code. Polk County's Flood Protection and Surface Water Management Code was enacted as Ordinance 81-28 and was amended by Ordinance 85-07. Article V is entitled "Flood Protection Standards." Section 5-1 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to new construction and substantial improvements in all areas of special flood hazard, and to any development, other than phosphate mining, within 100 feet of a watercourse: * * * (6) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. Section 5-2 provides in pertinent part: SPECIFIC STANDARDS: The following minimum standards shall apply in all areas of special flood hazard where base flood elevation data has been provided: * * * Subdivision Proposals: All subdivision proposals and other proposed developments shall be reviewed by the County Engineer. [I]f the proposal is in an area of special flood hazard, it shall be reviewed to assure that the following standards are met: All such proposals shall be reasonably safe from flood waters resulting from the base flood. All such proposals shall have public utilities and facilities such as sewer, gas electrical and water systems located and constructed to minimize flood damage. Base flood elevation data shall be provided for all such proposals. Roads shall be reasonably safe from flood waters resulting from the base flood. Article VI of Polk County's Flood Protection and Surface Water Management Code is entitled "Water Management Standards." Section 6-2 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to all development which occurs within an area of special flood hazard and to any man-made change to improved or unimproved real estate . . .. * * * (3) (a) The amount of site alteration within a wetlands soil association shall be limited to ten percent (10%) of the area of wetlands soil association within any given total site. Review under the 1985 Plan and the Flood Protection and Surface Water Management Code. Land Use, Density and Intensity. DCA alleges that the land use, density and intensity of the development Crowder proposes for the site is inconsistent with: (1) the section on "Density" found in Part IV of the Conservation Element, entitled "Summary of Special Problems, Areas, Issues, and Relationships"; (2) a section of Part II of the Conservation Element of the Polk County Comprehensive Plan entitled "Rare and Unique Natural Resources"; (3) Policy 2, Objective I, "Agricultural Uses," in Part V of the LUE; and (4) Policy 2, Objective IV, "Residential Uses," in Part V of the LUE. 6/ As previously stated, the 1985 Plan is a policy plan that does not map land use classifications or densities or intensities of development. Crowder's Paradise Country Estates is consistent with the County's Zoning Code, which has not changed since before the 1985 plan, and Zoning Map. The development was not otherwise reviewed for land use, density or intensity. But it is clear that the 1985 plan does not condone exclusive resort to the zoning code to determine the appropriateness of the land use, density and intensity for development in the Green Swamp ACSC. See, especially, the section entitled "Density" in Part IV of the Conservation Element of the Plan. In the Green Swamp ACSC, especially, reference must also be made to the Plan itself. See Part VII of the LUE, entitled "Implementation." It is not found that all residential use on the Crowder property would be, in itself, inconsistent with the 1985 Plan. But, taking into consideration all of its land use, density and intensity provisions, it must be found that the development order issued in this case, especially at its level of density and intensity and especially in the manner of its issuance, is inconsistent with the 1985 Plan. The crux of the problem with this development, like others in the Green Swamp ACSC already permitted by County development orders, is that, first, the 1985 comprehensive plan and the County zoning regulations in place at the time were inadequate and, second, the steps envisioned in the plan to make them adequate have not been taken. For the plan and the zoning regulations to be adequate, and for a development order for a project in the Green Swamp ACSC in Polk County to be consistent with the 1985 comprehensive plan, either: (1) the plan must be amended to map land use classifications, densities and intensities of development in the Green Swamp ACSC; (2) the zoning code must be amended as envisioned in the comprehensive plan for the Green Swamp ACSC; or (3) the County must evaluate development orders for projects in the Green Swamp ACSC on a case- by-case basis for consistency with the comprehensive plan. None of these three possibilities happened in this case. 7/ Flood Plain Delineation. Paragraph 12 of the DCA Petition alleges that the Crowder development violates Policy 10 of Objective III, "Natural Resources," of the LUE: "Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973." Specifically, it is alleged that the use of a Federal Emergency Management Agency (FEMA) undetailed "A" zone to map the flood prone area on the site, and the failure to perform a detailed study, did not comply with the Flood Disaster Protection Act of 1973. Other allegations in the DCA Petition also implicate the delineation of the flood prone areas on the site. See, (5) Ground and Surface Water Quality, below. A FEMA "A" zone is the zone depicting the area determined by FEMA to be flood prone. In this context, FEMA defines a "flood prone" area as an area flooded in a 100-year, 24-hour storm. At the time Polk County reviewed the Crowder project for approval of the roadway and construction drainage plans, FEMA was requiring that a detailed study be performed to delineate the flood prone area. Polk County apparently was not aware of this requirement and was not enforcing it. Nor, apparently, was Crowder's engineer aware of it. In any event, Crowder did not have a detailed study performed to delineate the flood prone area on the site, and the County did not require it. In approximately March, 1992, Polk County received a written communication from FEMA advising of the requirement for a detailed study of the flood prone area in the case of developments like Crowder's. Polk County now requires compliance with this FEMA requirement. Crowder did not rely simply on the FEMA undetailed "A" zone to map the flood prone area on the site. Crowder's engineers used the existing undetailed FEMA maps as a starting point for determining base flood elevations. The engineers digitized the areas which had been designated as flood prone on the FEMA panels. The engineer then overlayed the digitized FEMA map with the on- site wetlands survey of the property, which had been field-staked and field- shot. Topographical field shots of the property which had been conducted throughout the site at one foot intervals were also overlayed on the digitized FEMA map. In addition, the engineer took into consideration mapped wetlands soils and compared flooding conditions which had occurred on adjacent property to assess whether all areas actually prone to flooding had been characterized as flood prone on the FEMA map. The methodology used by the project engineers was based on sound engineering practices. Nonetheless, it does not qualify as a "detailed study" as far as FEMA is concerned. A "detailed study" would include the application of a computer program that would "route" hypothetical flood waters onto and through the property to ascertain flood elevations in different stages of the hypothetical flood. It is not possible to determine how a detailed study would change the delineation of the flood prone area in Crowder's proposal. The total area of flood prone area could either increase or decrease; it could increase in some places and decrease in others. As it is, several of the lots platted in the Crowder development would be entirely within both the FEMA undetailed "A" zone and the flood prone area mapped by Crowder's engineers. Ground Water Recharge. DCA alleges that platting Paradise Country Estates will adversely impact recharge of the Floridan Aquifer, contrary to Policy 9 and 11, Objective III, "Natural Resources," of the LUE, and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. In the vicinity of the project site, the Floridan Aquifer comes to within 35 feet approximately of the ground surface. Above the Floridan Aquifer is a shallow aquifer, which rises to within approximately 12 inches of the surface. There is a layer of clastic soils (sand and clay) between the surficial aquifer and the Floridan Aquifer. This confining layer slows the rate of recharge to the Floridan. As a result, the project site is in an area having low, or even very low, to moderate recharge capabilities, at best. USGS Professional Paper 1403-E, which was released in 1990, uses groundwater modelling to quantify recharge rates, instead of using qualitative terms such as "low," or "poor," "moderate" and "high" to describe recharge capabilities. USGS Professional paper 1403-E reports that many areas in the Green Swamp previously labeled as good, moderate or high recharge areas are actually capable of only recharging at rates of 3 to 4 inches per year. The subject property appears to be in the 2 to 3 inch range per year for recharge according to USGS Professional Paper 1403-E. Only three known sample soil borings have been taken on the project site. As a result, the extent of permeability and overall thickness of the confining layer between the surficial and Floridan aquifers is not certain. But there is no reason to believe that there are any karst features or other geologic faults in the area that would allow for direct connections between the surficial and Floridan aquifers. The soil borings that have been taken on the site verify the various geological surveys and studies describing the recharge capabilities in the area. Due to the site's limited capabilities as a recharge area, it is unlikely that the platting of this site will result in any significant reduction in its natural recharge rate. The project is not inconsistent with Policy 9 or 11, Objective III, "Natural Resources," of the LUE, or Policies 9 or 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. Individual Water Well Use. DCA alleges that the planned use of individual water wells in Crowder's Paradise Country Estates will impact the quantity of the Floridan Aquifer (and the surficial aquifer) contrary to Policy 11, Objective III, "Natural Resources," of the LUE, and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. The potentiometric level of the Floridan Aquifer protects the Floridan Aquifer from salt-water intrusion. Significant de-watering of the aquifer caused by large municipal or industrial wells extracting a high volume of water from the aquifer at an intense rate can lower the potentiometric pressure, thus increasing the potential for salt-water intrusion into the aquifer. (Furthermore, the lowered potentiometric pressure creates a hydraulic gradient which encourages surface waters to percolate downward at a faster rate due to the decreased pressure in the Floridan Aquifer. See the preceding sections on Ground Water Recharge and the following section on Ground and Surface Water Quality.) Large municipal, industrial or agricultural wells which exceed 6 inches in diameter must obtain consumptive use permits from the SWFWMD. The Water Management District takes into account what the District determines to be a safe yield per acre when issuing a consumptive use permit. Small, residential wells are not subject to this permitting process as their impacts are much smaller and less intense, and not a concern with regard to their effect on the potentiometric pressure. For this reason, some coastal areas have begun using smaller, individual wells as an alternative to larger municipal wells. The Floridan Aquifer is replenishing itself fast enough for residential wells not to "de-water" or "draw down" the aquifer's supply of ground water. Residential wells do not lower the potentiometric pressure of the Floridan to a significant degree. Nor would they affect the normal supply of ground water, or contribute to salt-water intrusion. Pumping tests performed within two to three miles west of the project site which utilized several residential-size wells support the foregoing conclusions. For these reasons, it is found that the development will not adversely impact the normal supply of ground water and thus will not interfere with the functions of the potentiometric high of the Floridan Aquifer, including its protection against salt-water intrusion. Since the water wells would pump only from the Floridan Aquifer, they would not impact the supply of surface water. In regard to the use of water wells, the project is not inconsistent with Policy 11, Objective III, "Natural Resources," of the LUE, or with Policies 9 or 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. Ground and Surface Water Quality. DCA alleges that Paradise Country Estates will result in unacceptable contamination of the Floridan Aquifer, the surficial aquifer, and the surface water (particularly the Withlacoochee River) contrary to Policies 9, 10 and 14 of the "Water Resource Objective" of the Conservation Element. Paragraph 20 of the DCA Petition alleges that the use of individual on-site disposal systems (OSDS), or septic tank systems, in violation of Section 5-1(6) of Polk County Ordinance 81-28 (the County Flood Protection and Surface Water Management Code), 8/ in particular, will be part of the cause of the unacceptable contamination (other causes being from lawn and garden maintenance and automotive wastes.) On-Site Disposal Systems. Chapter 10D-6, Florida Administrative Code, sets forth requirements for the use of on-site waste disposal, or septic tank, systems in the State of Florida. That chapter, which is administered by the Department of Health and Rehabilitative Services ("HRS") through local health departments, provides construction standards for the installation of on-site waste disposal systems. The septic tank serves as a holding tank designed to separate solids and floatable materials and allows anaerobic digestion of organic materials. The remaining effluent exits the tank into the soil infiltrative process, which is referred to as the drainfield. The drainfield is composed of gravel placed around perforated pipes, which are designed to evenly distribute and release the effluent into soil material where the effluent undergoes aerobic digestion. Eventually, any constituents remaining in the effluent which have not been absorbed by the root zone or otherwise decomposed reach the subsurface waters which are referred to as the surficial water table. Each individual lot owner will be required to obtain a permit from the local health department prior to installing an on-site waste disposal system. Prior to issuing a permit, HRS inspects each site to assess soil limitations and to conduct a percolation test to determine the seasonal high water table for the site. Because the soils on the site are severely limited for filtration purposes and the high water table is only 10 to 12 inches below the surface, individual lot owners will be required to mound their on-site waste disposal systems to overcome these limitations. Although the fill used to mound the systems will be comprised of suitable soils, it is possible that the foreign soils will absorb moisture from the existing soils on this site, a phenomenon referred to as capillary fringe affect. This phenomenon can cause those portions of the fill which come in direct contact with the existing soils on the site to lose their filtration capabilities. Unless the fill becomes saturated from other sources, it is unlikely that capillary fringe affect will render the filtration process ineffective. The effects of capillary fringe affect can be lessened by mixing fill with soils found on the site, a practice undertaken by contractors when installing on-site waste disposal systems. In addition, increasing the amount of fill used to mound the system would decrease the potential affects of this phenomenon. 9/ Floridan Aquifer Water Quality. In some areas of the Green Swamp, the Floridan Aquifer is actually considered a surficial aquifer since no confining layers of soil or clay separate the subsurface water from the Floridan Aquifer. These areas would typically be characterized as areas with high recharge capabilities (or high potential for contamination). However, throughout the project site, a confining layer exists which is composed of clayey sands which have a very low permeability. Therefore, there is relatively little interaction between the surficial aquifer and the Floridan Aquifer on this particular site. For this reason, the use of individual on-site waste disposal systems on this site would pose no significant risk to the water quality of the Floridan Aquifer. Surficial Aquifer and Surface Water Quality.-- As for the surficial aquifer and surface water quality, Chapter 10D-6, Florida Administrative Code, requires on-site waste disposal systems be located at least 75 feet from waterbodies. Normally, and when the systems are operating properly, this assures that adequate filtration and decomposition occurs before wastewater reaches surface waters on or near the site. But, in the case of the Crowder proposal, it is necessary to consider that at least some of the mounded systems will be subjected to flooding and will become saturated. Even based on the analysis by Crowder's engineers, 51 of the lots in Paradise Country Estates are entirely flood prone; there is no place to put an OSDS on those lots that is not flood prone. If a "detailed study" had been done, it is possible that more lots would be entirely within the flood hazard zone. Other lots not entirely within the flood zone may not be able to accommodate an OSDS on the part of the lot not within the flood zone. If the OSDS mound is saturated during flood conditions, the system will fail, and untreated waste, or inadequately treated waste, will be released into the surface flood waters. This waste water will move laterally across the project site. Roots may absorb some nitrates or other organic compounds; 10/ otherwise, the waste water and its constituents will remain in the surface water. Lateral movement across the site generally will be slow, as the site is relatively flat. Some of the waste water and its constituents will get into the surficial aquifer. There are ditches or canals alongside and on the site that will direct the rest of the surface water into Pony Creek and other tributories of the Withlacoochee River, an Outstanding Florida Water approximately three and a half miles to the north. The Department of Environmental Regulation issued a dredge and fill permit for the project's road network's impact on wetlands on the site. But it did not pass on the use of OSDS in the individual lots. It also erroneously referred to the Withlacoochee as a natural Class III, instead of an Outstanding Florida Water. See F.A.C. Rule 17-302.700(9)(i). The Southwest Florida Water Management District (SWFWMD) issued a surface water management permit for the project. In evaluating a permit application, SWFWMD considers surface water quality. But the focus of SWFWMD's inquiry is the pre- and post-development peak flows. Also, when it considers water quality, SWFWMD considers the impact of site alteration on water quality, not the impact of the use of OSDS on the site. In addition, the Crowder project was reviewed under special criteria for low-density rural subdivisions that do not require the submission of as much information. It was not clear from the evidence precisely how SWFMD evaluates water quality under those criteria. For these reasons, based on the evidence, it cannot be said that the Crowder project's OSDS will be meet the minimum standard of being "located to avoid impairment to them or contamination from them during flooding," as required by Section 5-1(6) of Polk County Flood Protection and Surface Water Management Code, or that the project will "protect the normal . . . quality of ground and surface water . . . necessary for the protection of resources of state and regional concern," as required by Policy 10 of the "Water Resource Objective" of the Conservation Element of the Plan. Finally, the project will not "protect or improve existing ground and surface-water quality," as required by Policy 14 of the "Water Resource Objective" of the Conservation Element of the Plan. Other Appeal Issues. Except as set forth above, the Crowder development did not violate the 1985 comprehensive plan and Flood Protection and Surface Water Management Code provisions cited in the DCA Petition. Agency Practice - Other Development in the Area. As previously described, Evans Acres, to the west of the Crowder site, was approved by DCA in 1983. (See Finding 10, above.) As approved, it was comprised of 48 lots on approximately 1,290 acres (a density of one unit per 27 acres). The original lots ranged in size from 5 to 60 acres. Unbeknownst to the DCA, individuals apparently have since split their lots and many of the existing lots are 2 to 5 acres in size. A proposed development known as Turkey Creek is located between the project site and Evans Acres. Turkey Creek is comprised of approximately 57 lots on 170 acres with a gross density of 1 unit per 3 acres. The physical characteristics of the Turkey Creek property, including the abundance of wetlands and floodplains, are essentially the same as the proposed project site. DCA appealed Turkey Creek in June of 1992. However, in that case, the County had been approximately two years late in rendering the Turkey Creek development order to the DCA. Meanwhile, the developer incurred development expenses and already had constructed roads and drainage facilities for the development. The developer, the County and DCA executed a settlement agreement which allows the development to proceed according to the original construction plans, but requires homeowners to install dual septic tank systems and have their septic tanks cleaned and inspected every three years. Several other developments, which are in the general vicinity of the project site and have many of the same physical characteristics, including Yearling Trace and Buck Hill, have been appealed by DCA. Yearling Trace is comprised of 108 units on approximately 544 acres. Buck Hill is comprised of 55 units on approximately 214 acres. Those projects were appealed by DCA in June and April, 1992. In some of these cases, the County did not timely render development orders to DCA in a timely manner. In the case of Buck Hill, the DCA had been mailed an unapproved copy of development plans in October, 1990; in early 1992, DCA contacted the County to inquire, as no County-approved development plans ever had been sent to the DCA. In many of these cases, substantial development expenses had been incurred; in some cases, roads and drainage facilities already had been constructed. DCA decided to settle the pending appeals in which the County was late rendering the development order, and in which the developer already had constructed roads and drainage facilities, consistent with the Turkey Creek settlement. In cases where the County was late rendering the development order, but the developer had not already constructed roads and drainage facilities, the DCA determined to settle not only for stipulations to upgrade the OSDS, as in the Turkey Creek settlement, but also for requirements that a "detailed" flood zone study be done, in accordance with the FEMA requirements. Prior to the DCA appeal, Crowder had expended approximately $31,000 in permit fees. In addition, he has incurred development costs, primarily for engineering fees and related services. Through the time of the final hearing, he had spent approximately $99,000 on engineering fees and services. (The evidence was not clear how much had been incurred by the time of the DCA appeal.) However, the County was not late in rendering the Crowder development order, and Crowder has not constructed roads or drainage facilities. In view of the different circumstances in Crowder's case, DCA's prior agency practices do not compel that Crowder's development be treated in the same manner, i.e., be settled on the same terms, as the Turkey Creek and the others. DCA has argued that FLWAC's Final Order in the case of Dept. of Community Affairs v. Narbi International Company, Inc. and Lake County, 14 FALR 3223 (1992), controls this case and requires the Crowder development order to be overturned on appeal. Narbi involved development Green Swamp ACSC, albeit in Lake County. Factually, there are many differences between Narbi and this case. The Narbi development order was a rezoning from agricultural with a residential density of up to one unit per five acres to a residential planned unit development (PUD) zoning with a density of one unit per 1.35 acres. Also, Lake County's comprehensive plan had an "urban containment policy," which DCA equated with its non-rule policy preventing "urban sprawl" or "leap-frog development." Thirdly, in Narbi, it was found that a geologic fault existed on the project site which allowed a direct connection from the surficial aquifer to the Floridan Aquifer. Because of the factual differences, Narbi does not control the outcome of Crowder's case. Conditions for Approval. Based on the testimony of its witnesses, DCA has proposed that, notwithstanding its deficiencies, the Crowder project can be approved if its density is lowered to between one unit per ten acres and one unit per 20 acres. The rationale of DCA's witnesses seems to be that the proposed lower density, in and of itself, would cure at least the most significant of the deficiencies. Since the Crowder development order under review was for approval of particular road and drainage plans, the plans would have to be redrawn at the lower density and resubmitted for approval by the County subject to the final order to be entered in this case. It is not possible for the Commission to approve, on condition of lowered density, the plans that were the subject of the development order in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order rescinding and denying approval for the development order in this case. RECOMMENDED this 10th day of March, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 10th day of March, 1993.
The Issue Two issues, one of fact and one of law, are raised in this case as follows: Was the fill material placed in the waters of the state? Is the Petitioner estopped to assert its regulatory powers against the Respondent by the issuance of a permit by the county in which the site is located?
Findings Of Fact In early 1986 the Respondent caused approximately 663 cubic yards of fill material (See Petitioner's Exhibit 4) to be placed on the property at Lake Jackson containing approximately .73 acres (hereafter referred to as the site) described briefly as Section 32, Township 2 North, Range 1 West, Leon County, Florida. Respondent did not deny placing or causing the fill to be placed on the site. Respondent asserted that the point at which the fill was placed was not "waters of the state." In 1980, a predecessor in title to .47 acres of the .73 acres owned by Respondent applied for and received a permit from Leon County for filling on the .47 acres of the present site. This permit provided in part "Additional permits may be required by other regulatory agencies for the proposed projects. Any other required permits should be secured prior to initiation of any excavation or fill activities on these projects." Neither Respondent nor any of its predecessors in interest made application for or received a permit from the Florida Department of Environmental Regulation (DER) to place fill material in waters of the state on the site. When Respondent placed or caused the fill material to be placed on the site in 1986, the Respondent did not implement any of the special conditions or directives contained in the 1980 permit issued by the county. In February 1986, two months after the fill material was placed on the site, the county notified the Respondent by mail to remove the fill because it violated Leon County Ordinances and did not have the required DER dredge and fill permit. See Petitioner's Exhibit 9. Lake Jackson is located in Leon County, Florida. Its waters are waters of the state. The water level of Lake Jackson rises and falls, and would have submerged periodically the original elevation of the site at the point at which the fill was placed. See photographs of area taken in 1980, 1986, and 1987. On March, 1980 David Bickner visited the site. Bickner, a DER Field Inspector, observed and photographed a concrete and stone wall which had been built on the site roughly parallel to U.S. Highway 27. During the period of Bickner's inspection, the water level of Lake Jackson was lower than the elevation of the site; however, willows (Salix spp.) were growing landward of the wall. See Petitioner's Exhibit 8. In February and March of 1986 Roger Menendez visited the site. Menendez, a DER Field Inspector, observed and photographed the wall described above and the fill which had been placed landward of the wall, between the wall and U.S. Highway 27, and in the area north of the line of hay bales. Juncus Effusus, Nymphaea and willow, plant species identified by rule as submerged wetland species, were observed and photographed growing in the filled area and on the area adjacent to it. See Photographs, Petitioner's Exhibit A and B. In late 1986 and the week before the hearing, Todd Campbell visited the site. Campbell, a DER employee with degrees in zoology and ecology, observed the plant species growing in the undisturbed area adjacent to the filled area. All the plants (90-100 percent of the ground cover) were submerged species. Willows were observed by Campbell growing on the fill itself. Campbell made test borings on the fill site in many locations. The borings revealed that the soil beneath the fill was hydric soil typical of the soil immediately adjacent to the filled area. See Petitioner's Exhibits 6 and 7. It was Campbell's opinion based upon his observations of plant species and test borings of soil type that similar vegetation had grown at the original elevation of the site prior to the introduction of the fill. The 88 foot contour line has been established as the ordinary high water line for Lake Jackson based upon the agency's prior experience. All of the area filled was below the 88 foot contour line. See Petitioner's Exhibit 1. The site upon which the fill was placed is waters of the state based upon vegetation observed and photographed by Bickner, Menendez and Campbell. This finding is consistent with the fill being placed below the 88 foot contour line.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED That the Notice of Violation and Orders for Corrective Action should be made final against the Respondent. DONE and ORDERED this 30th day of March 1987, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1987. COPIES FURNISHED: Richard L. Windsor, Esquire Assistant General Counsel State of Florida, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ben H. Ervin, Esquire ERVIN & REICHMAN Post Office Box 41 Monticello, Florida 32344 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 CASE NO. 86-4761 RECOMMENDED ORDER ADDENDUM "A" LEGAL DESCRIPTION Commence at a concrete monument marking the Northeast corner of Section 5, Township 1 North, Range 1 West, Leon County, Florida, thence with the Easterly line of said Section run South 01 degrees 27 minutes 04 seconds East 587.15 feet, thence North 87 degrees 56 minutes 04 seconds West 6.24 feet to a point on the Southerly boundary of a 30 foot roadway thence with said Southerly Boundary run North 87 degrees 56 minutes 04 seconds West 1449.67 feet to a point of curve to the right on the Northeasterly right of way line of State Road No. 63 (U.S, No. 27), thence with said right of way line run with a radius of 11,519.20 feet, through a central angle of 03 degrees 00 minutes 46 seconds for an arc distance of 605.71 feet, thence North 42 degrees 36 minutes 52 seconds West 613.60 feet to the POINT OF BEGINNING, thence North 52 degrees 20 minutes 01 seconds East 66.06 feet to a point on the Randolph Meander Line of Lake Jackson, thence with said Meander Line run North 37 degrees 24 minutes 12 seconds West 149.48 feet, thence leaving said Meander Line run South 52 degrees 20 minutes 01 seconds West 82.29 feet to a point on the Northeasterly Right of Way of State Road No. 63 (U.S. No. 27), thence with said Northeasterly Right of Way run South 42 degrees 36 minutes 52 seconds East 150.00 feet to the POINT OF BEGINNING, containing 0.255 acres, more or less. Commence at a concrete monument marking the Northeast corner of Section 5, Township 1 North, Range 1 West, Leon County, Florida, thence with the Easterly line of said Section, run South 01 degrees 27 minutes 04 seconds East 587.15 feet, thence North 87 degrees 56 minutes 04 seconds West 6.24 feet to a point on the Southerly boundary of a 30 foot roadway, thence with said Southerly boundary, run North 87 degrees 56 minuets 04 second West 1449.67 feet to a point of curve to the right; to North easterly Right of Way of State Road No. 63 (U.S. No, 27), thence with said right of way run with a radius of 11,519.20 feet through a central angle of 03 degrees 00 minutes 46 seconds, for an arc distance of 605.71 feet, thence North 42 degrees 36 minutes 52 seconds West 763.60 feet to the POINT OF BEGINNING. From said POINT OF BEGINNING run thence North 52 degrees 20 minutes 01 seconds East 82.29 feet to a point on the Randolph Meander Line of Lake Jackson, thence with said Meander Line run North 36 degrees 24 minutes 12 seconds West 218.24 feet, thence leaving said Meander Line run South 52 degrees 20 minutes 01 seconds West 105.99 feet to a point on the Northeasterly Right of Way of State Road No. 63 (U.S. No. 27), thence with said Northeasterly Right of Way run South 42 degrees 36 minutes 52 seconds East 219.00 feet to the POINT OF BEGINNING, containing 0.47 acres, more or less.
Findings Of Fact Pal-Mar is a water management district operating pursuant to Chapter 298, Florida Statutes, in Martin and Palm Beach Counties, Florida. Pal-Mar has proposed to construct a drainage system serving approximately 22,500 acres of land of which approximately 18,000 acres are located in Martin County. There are five (5) proposed phases of construction required to complete the drainage system. Four (4) of these phases, I, II, IV and V, are considered by Pal-Mar to constitute a closed system as defined in Section 373.403(6), Florida Statutes. There is no connection between phase III and the rest of the system. During mid 1976, Pal-Mar filed an application with SFWMD for a surface water management permit for Pal-Mar's water management plan for phase III. It was stated therein that Pal-Mar considered phases I, II, IV and V to be a closed system and exempt from the permitting requirement of Part IV, Chapter 373, Florida Statutes. At its regular monthly meeting of October 7, 1976, the governing board of SFWMD considered the status of phases I, II, IV and V of the Pal-Mar plan. A motion to declare phases I, II, IV and V not a closed system failed. No other motion was made concerning the system. At its annual landowners meeting of June 16, 1977, the president of Pal-Mar's Board of Supervisors indicated that Pal-Mar had received a "tentative declaration" that phases I, II, IV and V constitute a closed system. On September 2, 1977, Martin County initiated the instant proceeding. Phases I, II and V of the propose drainage system are separated from phase IV by State Road 711. The section of State Road 711 in Martin County is maintained by Martin County and Martin County owns a 200 foot easement for the State road. The southern portion of State Road 711 within the drainage system runs through Palm Beach County. The Jupiter Grade Road passes through the center of the proposed drainage system's reservoir in an east/west direction. Litigation is presently pending between Pal-Mar and Martin County as to the ownership of the Jupiter Grade Road. Pal-Mar has acquired no easements or other legal use of the Jupiter Grade Road from Martin County nor has Pal-Mar obtained from Martin County any form of easement or license to cross State Road 711 for purposes of implementing the drainage system. As part of its plan, Pal-Mar intends to acquire from either Martin County or Palm Beach County such control of or access to State Roads 711 and its appurtenant easement as is necessary to implement the drainage system plan. As to the Jupiter Grade, Pal-Mar intends to either provide a two part reservoir with containment levees to protect the Jupiter Grade, to seek requisite ownership or control of the Jupiter Grade from Martin County or to voluntarily relocate the Jupiter Grade as part of its proposed project. Finally, the project will require a joint levee east of phase IV, 500 feet north of State Road 706. Pal-Mar intends as part of its plan to obtain necessary easements for construction of the joint levee. The proposed system requires no water for filling, replenishing and maintaining its water level and indeed requires no water at all.
Recommendation For the foregoing reasons, it is recommended that South Florida Water Management District enter its declaratory statement declaring that the Pal-Mar Water Management District plan is a closed system as that term is defined in Section 373.403(6), Florida Statutes. DONE and ENTERED this 8th day of March, 1978, in Tallahassee, Florida. MICHAEL R. N. McDONNELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1978.
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 Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the Hearing Officer's personal view of the subject premises, the following relevant facts are found: In April or May of 1974, William M. Lyons, as president of Central Development Company, submitted an application for a permit to construct a 20 foot wide, 172 foot long concrete bridge across sovereign land connecting Parker Island in King's Bay with a mainland lot. Both the mainland lot, known as Lot 20, Parker Haven, and Parker Island are owned by Central Development Company. The application contains specific plans for run-off control. In 1975, various studies were performed by representatives of different environmental agencies concerning the proposed project. Representatives from the respondent Department of Environmental Regulation concluded that the bridge should cause no significant direct degradation of or adverse effect upon the water quality of King's Bay. The Director of the Division of Environmental Permitting therefore recommended the issuance of a permit and water quality certification following public notice of the project. In February of 1975, the Chief of Survey and Management of the Department of Natural Resources conducted a biological and hydrographic assessment and found that "the proposed bridge construction would eliminate a limited area of vegetated bottoms but would not, in itself, significantly affect aquatic biological resources," and that "it is improbable that the proposed bridge construction . . . would have significantly adverse hydrographic effects." The Game and Fresh Water Fish Commission had no objection to the bridge itself, but did express concern over the future development of Parker Island. The petitioners herein are citizens and property owners in the area and have requested a hearing on the permit application. The Department of Environmental Regulation forwarded the petition to the Division of Administrative Hearings, and the undersigned Hearing Officer was duly designated to conduct the hearing. Upon the agreement of all parties, the hearing was consolidated with other cases involving permits for projects in the King's Bay area of Crystal River. The prime issue upon which testimony was adduced at the hearing was the effect of the proposed bridge upon navigation. The waters of King's Bay are affected by the ebb and flow of the tide. The bridge is to be approximately four and one-half feet above the mean high water level. The pass between Parker Island and the mainland Lot 20 is approximately 250 feet wide and is relatively shallow, ranging from a low of one foot to a high of approximately four and one- half feet deep, depending upon the tide. Net fishing and gigging in that area are prohibited. Power boats, air boats and small sailboats presently utilize the pass, but large sailboats would not prudently use this pass for safety reasons. Small power boats with windshields and/or covered tops would probably not be able to use the pass during high tide if the proposed bridge at a height of four and one-half feet is constructed. A mean high water survey, per se, was not conducted by or on behalf of the applicant. Rather, the applicant relied upon a bulkhead map which establishes a bulkhead line around Parker Island (Exhibit 9). This document describes mean high water as +1.2 elevation and the metes and bounds description of the bulkhead line is followed by the words "all being along the mean high water line." The King's Bay area and the springs located therein provide a winter home for manatee, an endangered species. During high tides, manatees have occasionally been observed in the pass between Parker Island and Lot 20 on the mainland. While further development and degradation of the area could affect the manatee population, the placement of the bridge itself would not affect the navigation of the manatee travelling in that area, though some would balk or be hesitant around the bridge. One of the greatest hazards to the manatee is injury or even fatality from boat propellers and collisions with fast moving power boats. A boat travelling at five miles per hour should present no problem to the manatee. Several residents owning waterfront lots on King's Bay testified that their view of the open water would be obstructed by the existence of the proposed bridge. The purpose of constructing the bridge is obviously to provide a means of access from the mainland to Parker Island. Parker Island is about five and one-half acres in size and is owned by Central Development Company. Preliminary land use plans have been developed for an environmentally oriented low density subdivision on Parker Island. The conceptual plans include the sale of eleven lots, one-third acre each, for residential purposes. Each lot owner would only be permitted to develop 5,000 square feet of the lot, with the remainder of the lot to be retained in an undisturbed state. The preliminary plans call for underground utilities, no seawalls and a centralized dock. It must be emphasized that these are preliminary or conceptual plans for development of the Island, and Central is in no way bound by said plans. On or about April 5, 1977, the Board of County Commissioners of Citrus County passed a resolution declaring that the area known as King's Bay and the islands located therein was an area of critical habitat, and that any man-made changes in the area be subject to public hearings and comply with all Citrus County ordinances, resolutions and regulations. Lot 20 on the mainland is zoned R-1AA which permits single family dwellings, municipally owned or operated parks and playgrounds, golf courses, certain temporary signs and certain conditioned accessory uses. Central Development Company has not appeared before the zoning board to seek a zoning change or exception for Lot 20. Central Development Company has submitted to the Department of Natural Resources an application for an easement for its bridge construction. This is the subject matter of Case No. 77-960, for which a separate recommended order is being entered.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Department of Environmental Regulation issue to Central Development Corporation a permit to construct a concrete bridge between Lot 20, Parkers Haven, and Parker Island subject to the following conditions: The height of the structure above mean high water level be increased from four and one-half (4 1/2) feet to six and one-half (6 1/2) feet; and Receipt by the applicant and exhibition to the Department of Environmental Regulation of the required easement or other form of consent from the Board of Trustees of the Internal Improvement Trust Fund authorizing the proposed use of sovereignty lands, as required by Florida Statutes 253.77 (1976). Respectfully submitted and entered this 16th day of September, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Baya M. Harrison, III, Esquire Post Office Box 391 Tallahassee, Florida 32302 David Gluckman, Esquire 3348 Mahan Drive Tallahassee, Florida 32303 Mr. H. A. Evertz, III Florida Power Corporation Post Office Box 14042 St. Petersburg, Florida 33733 Kent A. Zaiser, Esquire Assistant Department Attorney Department of Natural Resources Crown Building 202 Blount Street Tallahassee, Florida
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Occidental Chemical Company owns, operates or otherwise controls phosphate mining and fertilizer manufacturing facilities in the State of Florida. In the course of activities incident to mining phosphate petitioner is required in some instances to seek approval from the Department of Environmental Regulation for activities conducted in or connected to areas defined as "waters of the State" under Rule 17-4.28 and related definitional sections of the Florida Administrative Code. In the past, petitioner has applied for permits under Rule 17-4.28, Fla. Admin. Code, some of which have been issued and some of which have been subject to notices of intent to deny. Determinations by DER as to whether regulated activity is or will occur in an area conducted in or connected to waters of the State are made on a case by case basis depending upon specific on-site characteristics. In making such jurisdictional determinations, DER employees rely upon and utilize the concepts embodied in Rule 17-4.28(2) and the related definitions contained in Rules 17- 4.02(17) and (19), Florida Administrative Code. In the past two years (July, 1978 to June, 1980), Rule 17-4.28 has been applied in a permitting mode some 5,080 times. With the exception of the term "intermittent" which is used in hydrogeological technical descriptions, no evidence was admitted at the hearing that the various phrases or terms utilized in Rule 17-4.28(2) or its related definitions constitute technical terms of art within a particular science or profession. Rather the evidence illustrates that the terms and phrases used in the challenged rules, unless specifically defined elsewhere in the respondent's rules, are to be given their plain and ordinary meaning and are applied to the site specific facts of each particular situation. The testimony with regard to the term "intermittent" was simply that as used in the rule, it came more closely to defining an ephemeral stream. A hydrologist would prefer a purer statement of the concept of intermittency. The term "dominance" is defined in unchallenged Rule 17-3.021(8), Florida Administrative Code. This rule lists four different methods for determining the dominant vegetational species or communities in an area, without guidance as to the method to be used. Certain methods used for determination of dominance are more useful or adequate than others, depending on the area measured. It is possible to obtain different results when different methodologies are employed. While DER does not require, either in the Rule itself or in practice, the performance of all four methodologies, a determination of jurisdiction will be made if any of the methods used result in a finding that the vegetational species listed in Rules 17-4.02(17) or (19) constitute the dominant plant community. The borders or boundaries of waters of the State subject to DER's jurisdiction are defined by the vegetational indices listed in Rules 17-4.02(17) and 17-4.02(19), Florida Administrative Code. Vegetational characteristics of an area may also be utilized to determine whether a natural tributary acts as a tributary only following the occurrence of rainfall, whether a tributary normally contains contiguous areas of standing water, whether an area customarily exchanges water with another water body and whether an area provides significant benefit to the water quality of another water body. There was no evidence that the respondent DER has an unwritten policy to exert jurisdiction over activities occurring in isolated, privately owned areas. The petitioner failed to prove that DER has an established pattern or policy; of issuing or denying permits or of determining jurisdiction under Chapter 403, Florida Statutes, based upon considerations other than water quality. The evidence illustrates that factors such as the preservation of wildlife, wildlife habitat and wetlands are considered only with respect to their impact upon water quality.
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.
