Findings Of Fact The site for the proposed combined cycle generating facility, hereinafter referred to as Unit S-5, is part of the existing 22-acre utility complex located near the western edge of the City of Lake Worth, Florida. This site, which has been used by the Lake Worth Utilities Authority for electrical power generation for over 25 years, is shared by the power plant, water treatment plant, public works department and various other municipal agencies. The site is bounded by public use areas, such as the Lake Worth Senior and Junior High School and athletic field on the north and east, the Seaboard Coast Line Railroad right-of-way and Interstate Highway 95 on the west and the Lake Worth Utilities Authority water treatment plant on the south. The most significant visual change to be caused by the addition of Unit S-5 to this site will be the addition of a 75 foot high exhaust stack and the mechanical draft cooling tower. Both of these structures will be, in large part, masked by the 1-95 elevated roadway, which dominates the skyline in the area of the site. Unit S-5, as proposed, will be of the combined cycle type, nominally rated at 29.5 megawatts. The unit will basically consist of a gas turbine- generator unit, unfired heat recovery steam generator, and steam turbine- generator unit and auxiliaries. The unit will utilize a cooling tower as is presently being done for the four existing steam units already on site. Operating at designed capacity, Unit S-5 will use an estimated 346,000 gallons of water per day through 1982. It is similarly estimated that, operating at designed capacity, 28,000 gallons of water per day would be discharged as cooling tower blow-down, boiler blow-down and demineralizer backwash. The applicant estimates that the average water use of Unit S-5 will be 201,000 gallons per day, which is approximately 3.8 percent of the 1978 projected average daily output of the Lake Worth Utilities Authority-water plant, from which the water will be taken. The Lake Worth Utilities Authority water Plant has a total design capacity of 25 million gallons per day. The design of Unit S-5 will allow operation on both gaseous and/or liquid fuels. Natural gas and number two diesel oil will be the fuels fired in this unit. The presently existing fuel facilities and supply arrangements are sufficient to provide the fuel needs of Unit S-5. Unit S-5, as designed, will be a highly efficient generator of electricity. It would allow the Lake Worth Utilities Authority to produce electricity at a lower cost by consuming less fuel per unit of electricity produced. According to the applicant's projections, the net savings in system operating costs would range from $70,000 to $500,000 per year depending upon fuel costs and fuel availability." The applicant presented unrebutted testimony showing that, because of the efficiency of the proposed unit, annual fuel savings could be as high as the equivalent of 860,000,000 cubic feet of natural gas or 5,370,000 gallons of oil. Further, operation of Unit S-5 would result in a substantial reduction in power plant water consumption. The applicant, Lake Worth Utilities Authority, has shown, by unrebutted testimony, that Unit S-5 will be highly efficient in operation and result in a substantial savings in operating costs should it come on line in 1978. ,As shown by the staff report of the Department of Environmental Regulation, Composite Exhibit 3, the construction of Unit S-5 will have minimal impact on the environment because of the previous impact of construction of the existing units already on site. Further, normal operation of the unit, as proposed, at worst, will cause a minimal increase in environmental impact over that caused by existing units. When displacement of older, less efficient units occur, Unit S-5 may reduce the overall environmental impact of the plant site. The unit is designed to operate in compliance with all applicable state and federal environmental standards and regulations. The Florida Public Service Commission is required by Section 403.57, Florida Statutes, to prepare a report and recommendation as to the present and future needs for electrical generating capacity in the area to be served by the proposed site. Such a report and recommendation was prepared and submitted as required by statute in this proceeding. The Public Service Commission found the area to be served by Unit S-5 to be an area containing approximately 11 square miles, which includes the City of Lake Worth and vicinity, as defined in the territorial agreement dated March 6, 1972, between Florida Power and Light Company and the Lake Worth Utilities Authority. Due primarily to the severe depression of the state economy and the price increases in the cost of fuel oil, the Florida Public Service Commission report finds that the annual growth rates in demand for electricity have been reduced. Using what it termed a "realistic" growth rate of 7.5 percent annually and a minimal growth rate of 5.75 Percent annually, the Florida Public Service Commission concluded that a need for the additional generating capacity to be provided by Unit S-5 would not exist until 1982 to 1984. Consequently, the Commission concluded that a need for the generating capacity for Unit S-5 will not exist in 1978, the year in which the applicant proposes to bring the unit on line. However, the Commission's report notes that they have considered summaries of an economic analysis submitted, by the Lake Worth Utilities Authority which showed that, due to the greater efficiency of the proposed unit, the savings in operating the system with this new unit would more than offset the cost to build it. Noting that the Commission staff reviewed these summaries and performed an analysis of their own for a range of generating efficiencies and fuel costs, the report concludes that the assumptions for this analysis were reasonable and that, based on these assumptions, there is an economic advantage when operating with the proposed Unit S-5, even though a need to meet demand may not exist at the time the unit is to come on line. A need for the generating capacity of Unit S-5 will not exist until 1982 to 1984. The Division of State Planning of the Department of Administration has reviewed the 1975 ten-year site plan of the Lake Worth Utilities Authority with regard to proposed Unit S-5. The report of the Division of State Planning notes that the Division concurs with the Public Service Commission in its assessment that need for the generating capacity will not exist in 1978. However, the report notes that it has no basis for disagreement with the applicant's calculations that bringing Unit S-5 on line would provide power cheaper than can the Present system. Therefore, the Division's report concludes that the ten- year site plan of the Lake Worth Utilities Authority, as amended by the final version of its site certification request, is suitable, and recommends that the proposed Plan be certified. There will be no new associated transmission facilities involved in the construction and operation of Unit S-5. Existing transmission facilities will be utilized. The staff report of the Department of Environmental Regulation concludes that if Unit S-5 can produce electricity at a significantly lower cost and thereby justify that the unit is necessary environmentally, Unit S-5 appears acceptable. It further concludes that if Unit S-5 is needed, and considering the slight environmental impacts of Unit S-5, the site is suitable at present and certification could be granted subject to proper conditions. Composite Exhibit 3 includes a statement of General Conditions of Certification and Special Conditions of Certification, which the Department of Environmental Regulation have proposed be made applicable to this facility if certified. The applicant, Lake Worth Utilities Authority, has stipulated and agreed that the General and Special Conditions of Certification, as proposed, should be imposed if certification is granted. As shown by Florida Pollution Control Board Order No. 75-2, dated February 10, 1975, Exhibit 7, the Florida Pollution Control Board, pursuant to Chapter 403, Florida Statutes, found that the proposed site for Unit S-5 is consistent and in compliance with existing land use plans and zoning ordinances. At the conclusion of the presentation by the parties to this proceeding, opportunity was given to the general public to comment upon the application for site certification. No one appeared to make comment.
Recommendation Having reviewed the record of this proceeding, and based upon the Findings of Fact and Conclusions of Law set forth herein, it is hereby RECOMMENDED that certification, pursuant to Chapter 403, Florida Statutes, be granted the Lake Worth Utilities Authority, for the construction and operation of Unit S-5 in Lake Worth, Palm Beach County, Florida. It is further recommended that this certification be made subject to the General and Special Conditions of Certification as set forth in Composite Exhibit 3. Entered this 17th day of March, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joe McGlothin, Esquire Florida Public Service Commission 700 South Adams Street Tallahassee, Florida 32340 Louis F. Hubener, Esquire Attorney, Division of State Planning 600 Apalachee Parkway Tallahassee, Florida 32304 Ross A. McVoy, Esquire Attorney, Department of Environmental Regulation 2562 Executive Center Circle, East Tallahassee, Florida 32301 James Vance, Esquire Attorney, Lake Worth Utilities Authority 1201-A Belvedere Road West Palm Beach, Florida
The Issue The issue is whether an Environmental Resource Permit (ERP) and a Letter of Consent to Use Sovereignty Submerged Lands (Letter of Consent) should be issued to Respondent, Palm Beach County (County), authorizing it to fill 7.97 acres of submerged lands for a restoration project in Lake Worth Lagoon.
Findings Of Fact Based upon all of the evidence, the following findings are determined: The Parties Trump is the owner association for a two-towered residential and commercial condominium building located at 525 South Flagler Drive in downtown West Palm Beach, upland and west of the project site in the Lagoon. Each tower rises thirty floors and together they have of two hundred twenty units. The first five floors are common areas including a lobby on the first floor, while a pool and patio are located on the fifth floor of the north tower. The property is separated from the Lagoon by Flagler Drive, a four-lane divided road with landscaping and sidewalks which runs adjacent to, and on the western side of, the Lagoon. There is no dispute that Trump has standing to initiate this action. Flagler owns, manages, and leases two multi-story office buildings located at 501 Flagler Drive on the upland real property directly west of the project location. Like the Trump property, the Flagler property is separated from the Lagoon by Flagler Drive. There is no dispute that Flagler has standing to participate in this matter. The County is a political subdivision of the State and is the applicant in this proceeding. The Department is the state agency with the authority under Part IV, Chapter 373, Florida Statutes,2 to issue to the County an ERP for the project, as well as authority as staff to the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) to authorize activities on sovereign submerged lands pursuant to Chapter 253, Florida Statutes, and Chapter 18-21. Background On October 29, 2007, the County submitted to the Department its Joint Application for an ERP and Letter of Consent to use sovereignty submerged lands in the Lagoon owned by the Board of Trustees. The application was assigned File No. 50- 0283929-00. After an extensive review process, including three requests for additional information, on August 12, 2008, the Department issued its Notice of Intent authorizing the County to fill 7.97 acres of submerged lands in the Lagoon with approximately 172,931 cubic yards of sand and rock material to create the following: (a) approximately 1.75 acres of red mangrove habitat including 1.52 acres of mangrove islands and 0.23 acres of red mangrove planters; (b) approximately 0.22 acres of cordgrass habitat; (c) approximately 0.90 acres of oyster habitat; (d) approximately 3.44 acres of submerged aquatic vegetation habitat; and (e) a 10-foot by 556-foot (5,560 square feet) public boardwalk with two 3-foot by 16-foot (48 square feet) educational kiosk areas and a 16-foot by 16-foot (256 square feet) observation deck for a total square footage of approximately 5,912 square feet. The Notice of Intent also included a number of general and specific conditions particular to this project. Trump (by timely Petition) and Flagler (by intervention) then challenged the Notice of Intent. They contend generally that the project unreasonably infringes upon or restricts their riparian rights and fails to meet the permitting and consent to use criteria set forth in Chapters 18-21 and 40E-4, as well as Chapter 373, Florida Statutes, and Section 253.141, Florida Statutes. Conflicting evidence on these issues was presented at the hearing. The conflicts have been resolved in favor of the County and the Department, who presented the more persuasive evidence. The Project The project area is a cove in the Lagoon, a Class III water body which extends within the County from North Palm Beach to Manalapan. The western side of the water body in the project area is lined with a vertical concrete seawall approximately 6.64 feet above the mean low water line. The waters immediately adjacent to the Trump and Flagler upland property are generally two to five feet deep along the seawall. To the east lies the island of Palm Beach, to the south is the Royal Park Bridge, which connects West Palm Beach and the Town of Palm Beach, while to the north is the Flagler Memorial drawbridge. The Lagoon is approximately 2,000 feet from shore to shore. The Intracoastal Waterway (ICW) runs roughly through the middle of the Lagoon in a north-south direction. Currently, there is an artificial dredge hole in the project area around four hundred feet from the western seawall. The dredge hole, which descends to approximately twenty feet at its deepest location, is filled with muck, which can be re- suspended by wave energy into the water, blocking the sunlight necessary for the support of biotic life. The muck covers the natural hard bottom, consumes oxygen, and presents an unsuitable environment for benthic organisms. The dredge hole is too deep to support seagrasses. The project calls for filling the dredge hole to intertidal elevations, i.e., between the high and low tide elevations, for mangroves and elevations suitable for seagrass. In all, approximately 173,000 cubic yards of fill will be placed in and around the hole to build up three separate islands within the project footprint, on which the County will plant 10,000 red mangroves, which naturally grow between fifteen and twenty-five feet in height. (The County estimates that eighty to ninety percent of the mangroves will survive and grow to a height of at least fifteen feet.) The top of the islands, not including mangroves, will be just below the mean high water mark. The County also proposes locating planters along the seawall and oyster reefs along the southern end of the project. The planters are designed to extend out approximately twenty feet from the seawall and will be placed on sovereign submerged lands. The last five feet will consist of limestone rock. Mangrove, spartina, and seagrass habitats will provide a biodiverse source of food and habitat for other species, and occurs naturally within the Lagoon but has been lost over time. Oyster habitat is proposed for additional bio-diversity and to provide a natural water filtration function. From the County's perspective, the restoration project would be incomplete without all the habitats proposed. The planters will be at an intertidal elevation, planted with red mangroves and spartina, and faced with rock to reduce wave energy in the area. The oyster reefs are rock structures designed to rise one foot above mean high water line for visibility to boaters. The project also includes a boardwalk and attached educational kiosks on the south side of the project to bring the public in contact with the habitats. The County will maintain the boardwalk, empty the trash daily, and open/close the gates at sunrise/sunset. The County proposes a minimum ten-foot buffer between seagrass beds and the fill area. The project is part of the County's Lagoon Management Plan, which outlines the County's restoration goals within the Lagoon. The County has performed numerous other restoration projects within the Lagoon to re-introduce mangrove and seagrass habitat, such as Snook Island, which consisted of filling a 100- acre dredge hole, installing mangrove islands, seagrass flats, and oyster reefs. The Snook Island project restored mangrove habitat and recruited fish and bird species, including endangered and threatened species. Snook Island has remained stable, with no sediment deposition or erosion. The County intends to fill the dredge hole with native lagoon bottom sediment. A clam-shell machine will deposit the sediment below the water line to reduce turbidity. Sediment will be placed around the edges of the dredge hole, reducing the velocity of the fill as it settles to the bottom and encapsulates the muck, as required by Draft Permit Special Condition No. 19. The County will use turbidity curtains, monitor conditions hourly, and stop work if turbidity levels rise beyond acceptable standards. These precautions are included in Draft Permit Conditions 12, 13, and 14. The County will use construction barges with a four- foot draft to avoid propeller dredge or rutting and will place buoys along the project boundary to guide the construction barges, precautions integrated into the Draft Permit conditions. The County's vendor contracts require maintenance of construction equipment to prevent leakage. A similar condition is found in the Draft Permit. Both the intertidal and seagrass flats elevations at the top of the islands will be built at a 4:1 slope; elevations subject to wind and wave energy will be reinforced with a rock revetment constructed of filter cloth and rock boulders. Seagrass elevations will have no reinforcing rock because they are deep enough to avoid significant currents. Proposed drawings were signed and sealed by a professional engineer. The ERP Criteria To secure regulatory approval for an ERP, an applicant must satisfy the conditions in current Rules 40E-4.301 and 40E- 4.302. The first rule focuses primarily on water quantity, environmental impacts, and water quality. The latter rule requires that a public interest balancing test be made, and that cumulative impacts, if any, be considered. Also, the BOR, which implements the rule criteria, must be taken into account. a. Rule 40E-4.301 21. Paragraphs (1)(a), (1)(b), (1)(c), (1)(g), (1)(h), and (1)(k) and subsections (2) and (3) of the rule do not apply. Although Trump and Flagler have focused primarily on paragraphs (1)(d), (f), and (i) in their joint Proposed Recommended Order, all remaining criteria will be addressed. Paragraph (1)(d) requires that an applicant give reasonable assurance that the proposed activity "will not adversely affect the value of the functions provided to fish and wildlife and listed species by wetlands and other surface waters." Based on the project design, the filling of the dredge hole and capping of muck, the restoration of seagrass habitat, and the creation of mangrove habitat, the project will have no adverse impacts but rather will be beneficial to the value of functions for fish and wildlife. Paragraph (1)(e) requires that an applicant give reasonable assurance that the proposed activity will not adversely affect the quality of receiving waters. The County will be required to manage turbidity that may be generated from the project. In part, the turbidity will be contained by the proposed construction method for filling the dredge hole. As noted earlier, the native sand will be deposited using a clamshell-type arm to dump the sand under the water around the periphery of the edge of the downward slope of the dredge hole. This will continue around the periphery of the hole, building up a lip and letting it slide down towards the bottom of the hole, squeezing the muck into the center of the hole and beginning to encapsulate it. Once there are several feet of native sand over the muck to encapsulate it, the County will resume the filling at the target rate. Subsection 4.2.4.1 of the BOR requires that the County address stabilizing newly created slopes of surfaces. To satisfy this requirement, the County will place the fill at a 4:1 slope. The outer edge of the mangrove islands slope back to a 4:1 slope and use rock rip-rap to stabilize that slope. Also, filter cloth, bedding stones, and boulders will be used. Because water currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de-stabilize. There will be turbidity curtains around the project area. Those are floating tops and weighted bottoms that reach to the bottom and are intended to contain any turbidity that may be generated by the project. Specific Conditions 12, 13, and 14 require extensive monitoring of turbidity. The County proposes to use a barge with a draft no greater than four feet. This aspect of the project will require a pre-construction meeting and extensive monitoring throughout the project. As a part of the application review, the County performed a hydrographic analysis which was coordinated with and reviewed by the Department staff. There are no expected debris or siltation concerns as a result of the project. The more persuasive evidence supports a finding that over the long term, the project is expected to have a beneficial effect on water quality. By filling the dredge hole and providing habitat for seagrass, mangroves, and oysters, the project will provide net improvement to water quality. The requirements of the rule have been met. Paragraph (1)(f) requires that the applicant provide reasonable assurance that the activities will not "cause secondary impacts to the water resources." More detailed criteria for consideration are found in BOR Subsection 4.2.7. The County has provided reasonable assurance that through best management practices, it will control turbidity. Also, Specific Conditions in the proposed permit require that water quality monitoring be conducted throughout the process. There will be no impacts to upland habitat for aquatic or wetland dependent species. This is because a vertical seawall is located upland of the project site, and no surrounding uplands are available for nesting or denning by aquatic or wetland dependent listed species. A secondary impact evaluation also includes an evaluation of any related activities that might impact historical and archaeological resources. There are, however, no historical or archaeological resources in the area. If resources are uncovered during the project, Draft Permit conditions require notification to the Department of State. Finally, there are no anticipated future activities or future phases on the project to be considered. Rule 40E-4.301(1)(i) requires that the applicant provide reasonable assurance that the project "will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Trump and Flagler contend that the project cannot be constructed and successfully operated as proposed. Trump's expert witness, Joseph Pike, testified that there were ambiguities and conflicts within the plan drawings that would require changes upon build-out; either fill will be placed outside of the fill area, or the mangrove islands will be smaller than depicted. Mr. Pike also voiced concerns that a 4:1 slope would not be stable and might cause fill to migrate to existing seagrass beds. He further stated that the Snook Island project included 18:1 slopes, and he thought providing rock revetment only at the intertidal zone was insufficient. Mr. Pike acknowledged that he had used 4:1 slopes in lake projects; however, in a tidal project involving fill placement, he opined that a 4:1 slope was likely to "relax." He did not do calculations about what slope might hold and admitted that prior experience using similar slopes with the same type of fill might change his opinion. Finally, Mr. Pike noted that a portion of the dredge hole would not be filled and concluded that the project would not fully cap the muck. Trump's biologist, James Goldasitch, speculated that the water flow changes would cause sediment deposition on existing seagrass beds, possibly causing the seagrasses to die. He admitted, however, that the County's plans called for the creation of 3.44 acres of seagrass and did not know the amount of habitat created compared to the amount of habitat he anticipated being affected. The Department's engineer, Jack Wu, approved the hydrologic aspects of the County's plan, but Mr. Goldasitch speculated that Mr. Wu was more focused on shoreline stability than on depositional forces. Mr. Goldasitch never actually spoke to Mr. Wu regarding his analysis, and Mr. Wu's memorandum refers not only to engineering and construction aspects of the proposal but also to the criteria in Rules 40E-4.301 and 40E-4.302. Mr. Goldasitch believed the County's boardwalk will impact the seagrass beds by blocking sunlight, but acknowledged that the Draft Permit required the boardwalk to be elevated and portions to be grated. Both the Florida Fish and Wildlife Conservation Commission and the Department's expert witness concluded that the permit conditions for constructing the boardwalk, which are common, eliminated impacts to seagrass. Mr. Goldasitch further opined that the 4:1 slope might slump, but then deferred to the opinion of a registered engineer on this type of engineering matter. The County presented its professional engineer, Clint Thomas, who worked on the project design. Mr. Thomas explained that permit drawings are not intended to be construction-level in detail, but are merely intended to provide sufficient detail for the regulator to understand the project within the 8 and 1/2 by 11-inch paper format required by the Department. The County will ultimately prepare permit-level, construction-level, and as-built drawings. Permit conditions also require a pre-construction meeting. No fill will be placed outside the area designated for fill, and the 4:1 slope will start at the outer boundary of the designated fill area until it reaches the specified elevation. Mr. Thomas acknowledged that the plan view drawings depict a mangrove island too close to the western project boundary, but stated that the mangrove island would simply be placed farther to the east during the construction-level plan process. Islands will become smaller islands, but will not be relocated, and in no event will the fill area expand; the fill boundary is a very strict limit. There is no evidence that the County has ever violated a fill boundary established in a permit. The 4:1 slope was based on the type of fill proposed for the project and to maximize project features. Mr. Thomas has successfully used 4:1 slopes with non-compacted fill in the Lagoon, both at Snook Island in its as-built state and at other projects. The islands at Snook Island are similar to those proposed. Other areas in the Lagoon have held slopes steeper than 4:1 with the same type of fill. Therefore, Mr. Thomas opined the 4:1 slope would hold. In rendering this opinion, he explained that the currents in the project vicinity are only around 1.2 knots. Because currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de- stabilize. Mr. Thomas addressed the contention that a change in water flow velocity would cause sediment to deposit on existing seagrass. The oyster reefs are rubble structures that allow the water to flow through. If any sediment flows through, it will deposit on the north side of the oyster bar, rather than on the seagrass beds. Given these considerations, the evidence supports a finding that the project will function as proposed. Finally, paragraph (1)(j) requires that the County provide reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit. The evidence supports a finding that the County has complied with this requirement. In summary, the evidence supports a finding that the County has given reasonable assurance that the project satisfies the criteria in Rule 40E-4.301. b. Rule 40E-4.302 In addition to the conditions of Rule 40E-4.301, the County must provide reasonable assurance that the construction of the proposed project will not be contrary to the public interest. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7. Rule 40E-4.302(1)(a)1. requires that the Department consider whether the activity will adversely affect the public health, safety, or welfare or the property of others. Trump first contends that the project will increase the mosquito population. The evidence shows, however, that the mangroves will be placed below the mean high water mark and therefore no increase in mosquitoes should occur. Also, the design of the project, coupled with the local mosquito control program, should ensure that there will be no increase in mosquito population or a risk to the public health. Trump also raised the issue of an increase in trash along the boardwalk area or in the newly-created mangrove islands. The County presented evidence that there will be appropriate trash receptacles in the area as well as regular garbage collection. In terms of safety, navigation markers are included as a part of the project for safe boating by the public. The County consulted with the United States Coast Guard regarding navigation issues. Further, the project will not cause flooding on the property of others or cause an environmental impact on other property. Although a number of Trump residents expressed sincere and well-intended concerns about the project impacting the value of their condominiums (mainly due to a loss of view), BOR Subsection 4.2.3.1(d) provides that the "[Department] will not consider impacts to property values or taxes." Rule 40E-4.302(1)(a)2. requires that the Department consider whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Subparagraph 4. of the same rule requires that the Department consider whether the activity will adversely affect the fishing or recreational value or marine productivity in the vicinity of the activity. The proposed activity is a restoration project for the creation of seagrass and mangrove habitats. As such, it is beneficial to the conservation of fish and wildlife and is expected to increase the biotic life in the project area. Besides providing additional habitat for fish and wildlife, the project will add to the marine productivity in the area. In terms of recreational opportunities, the project is expected to be a destination for boating, kayaking, fishing, and birdwatching. The Florida Fish and Wildlife Conservation Commission has also recommended issuance of the permit with the standard manatee condition for in-water work. This recommendation has been incorporated as Specific Conditions 23 through 25 Rule 40E-4.301(1)(a)3. requires that the Department consider whether the activity will adversely affect navigation and the flow of water, or cause harmful erosion or shoaling. The nearest navigation channel is the ICW. The project is located outside of that area. Subsection 4.2.3.3 of the BOR provides additional guidance on the evaluation of impacts of this nature. Paragraph (a) of that subsection provides that, in evaluating a proposed activity, the Department "will consider the current navigational uses of the surface waters and will not speculate on uses which may occur in the future." Trump residents indicated that in the project area persons are now picked up off the seawall and then travel to the ICW. Access to the seawall is possible from the east and south, although existing shoals currently limit the approach from the south. Large boats do not use the area because of shoals. In general, "[t]here's not a whole lot of boating activity in the project area." The parties agree that if the project is constructed as designed, boats will not be able to travel directly out from the seawall in front on Trump or Flagler to the ICW, as they now do. However, navigation in the area will still be available, although not as convenient as before. As to water flow, shoaling, and erosion, the more persuasive evidence supports a finding that the 4:1 slope will be stable and will not cause fill to migrate outside of the boundaries of the project into existing seagrass beds. The tidal flow will continue through the area after construction without sediment deposition into existing seagrass beds or destabilizing the 4:1 slope. There will be no shoaling or erosion. Finally, the project will be permanent and there are no significant historical and archaeological resources in the area. See Fla. Admin. Code R. 40E-4.302(1)(a)5. and 6. In summary, the evidence supports a finding that the County's proposal is neutral as to whether the activity will adversely affect the public health, safety, welfare, or the property of others; that the County's proposal is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the County's proposal is positive with respect to the conservation of fish and wildlife, recreational values and marine productivity, permanency, and current values and functions. When these factors are weighed and balanced, the project is not contrary to the public interest and qualifies for an ERP. D. Proprietary Authorization Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. In making its review, the Department reviews the rule in its entirety; it also looks at the forms of authorization (e.g., letters of consent, leases, deeds, or easement) to determine the most appropriate form of authorization for an activity. Trump and Flagler have raised contentions regarding the proprietary authorization, including whether the application should have been treated as one of heightened public concern, whether the proper form of authorization has been used, and whether their riparian rights are unreasonably infringed upon by the project. Heightened Public Concern Rule 18-21.0051 provides for the delegation of review and decision-making authority to the Department for the use of sovereign submerged lands, with the following exception found in subsection (4) of the rule: (4) The delegations set forth in subsection (2) are not applicable to a specific application for a request to use sovereign submerged lands under Chapter 253 or 258, F.S., where one or more members of the Board, the Department, or the appropriate water management district determines that such application is reasonably expected to result in a heightened public concern, because of its potential effect on the environment, natural resources, or controversial nature or location. On March 13, 2008, the Department's West Palm Beach District Office sent a "heightened public concern [HPC]) memo" to the Department's review panel in Tallahassee,3 seeking guidance as to whether the project required review by the Board of Trustees under the above-cited rule. The Department emailed the County on March 14, 2008, stating that the project would be elevated to the Board of Trustees for review to approve the entire Lagoon Management Plan. The County asked for reconsideration, concerned over timing restraints on grant opportunities. This concern is based on the fact that the County will receive grant monies to assist in the construction of the project and must have regulatory approval by a date certain in order to secure those funds. A second HPC memorandum was sent to the review panel on April 22, 2008. Part of the interim decision to elevate the application to the Board of Trustees concerned the boardwalk connection to the City of West Palm Beach's existing seawall. The City of West Palm Beach is the upland owner of the seawall, sidewalk, and Flagler Drive. On June 9, 2008, the Mayor of West Palm Beach sent a letter to the Department stating that the City "fully supports" the proposed activity, and that the County and the City collaborated on the design of the project, held joint public meetings, and produced a project video. See Department Exhibit Trump and Flagler argue that under the City Charter, the Mayor cannot unilaterally bind the local government to allow structures to be built on City property. Assuming this is true, one of the remaining conditions for the County to initiate the project is to obtain a "letter of concurrence" from the City of West Palm Beach authorizing the County to connect the boardwalk to the seawall. Therefore, the review panel ultimately concluded that the application could be reviewed at the staff level and did not require Board of Trustees review. The evidence at hearing did not establish that the application was one of heightened public concern, given the limited size of the project, its location, and the net benefit to both environmental and natural resources. Compare Brown, et al. v. South Fla. Water Mgmt. Dist., et al., DOAH Case No. 04-0476, 2004 Fla. ENV LEXIS 112 (DOAH Aug. 2, 2004, SFWMD Sept. 8, 2004). Therefore, review by the Board of Trustees was not required. Form of Authorization Trump and Flagler contend that an easement is required by the County, rather than a consent of use. The standard for obtaining an easement is more stringent than a consent of use, and an easement offers a greater interest in sovereign lands. Rule 18-21.005(1) provides the general policy direction for determining the appropriate form of authorization and reads in relevant part as follows: It is the intent of the Board that the form of authorization shall grant the least amount of interest in the sovereignty submerged lands necessary for the activity. For activities not specifically listed, the Board will consider the extent of interest needed and the nature of the proposed activity to determine which form of authorization is appropriate. This rule requires that the Department should apply the lowest and least restrictive form of authorization. Trump and Flagler argue that the County's project constitutes a spoil disposal site under Rule 18-21.005(1)(f)8., a public water management project other than public channels under Rule 18-21.005(1)(f)10., or a management activity which includes "permanent preemption by structures or exclusion of the general public," as described in Rule 18-21.005(1)(f)11. Each of these activities requires an easement rather than a letter of consent in order to use sovereign submerged lands. The evidence shows that the County's project is not a spoil disposal site. Also, it is not primarily a public water management project as there is no evidence that the project relates in any way to flood control, water storage or supply, or conservation of water. Likewise, there is no evidence indicating that the activities will prevent access by the public by exclusion. Even though many of the features (structures) of the project will be permanent, the project is intended to generally increase public access to water resources, as well as the islands, boardwalk, and kiosks. Besides raising the issue of heightened public concern, the second HPC Memorandum dated April 22, 2008, sought guidance as to whether the project required a consent of use or an easement. The review panel concluded that the project qualified for a consent of use, rather than an easement under Rule 18- 21.005(1)(f), because the County's project most closely fits the definition in Rule 18-21.005(1)(c)15. That rule provides that if the proposed activity involves "[h]abitat restoration, enhancement, or permitted mitigation activities without permanent preemption by structures or exclusion of the general public," an applicant may use sovereign submerged lands with a consent of use. Because the County's project increases public access not only to water resources in the Lagoon but also to the permanent structures being built, it more closely falls within the type of activity described in Rule 18-21.005(1)(c)15. Notably, all of the County's restoration projects in the Lagoon have been previously authorized through a consent of use. Finally, the review panel concluded that the project did not fall under Rule 18-21.005(1)(f)16., which requires an easement for environmental management activities that include "permanent preemption by structures or exclusion of the general public" because of the rule's focus on the exclusion of the general public. Riparian Rights The parties have stipulated, for the purpose of this proceeding, that Trump and Flagler have riparian rights, including view, ingress/egress, fishing, boating, swimming, and the qualified right to apply for a dock, that should be considered. Trump and Flagler contend that their right to wharf out (build a dock) from the seawall, ingress/egress from navigable water, and view will be unreasonably infringed upon if the application is approved. See Fla. Admin. Code R. 18- 21.004(3)(a)("[n]one of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights, as defined in Section 253.141, F.S., of upland property owners adjacent to sovereignty submerged lands"). For the reasons given below, the greater weight of evidence establishes that none of these riparian rights will be unreasonably infringed upon. Currently, while access is possible from the east and the southern approaches, existing shoals limit the southern approach. The boardwalk will further limit boat traffic on the south end, and boats would not be able to cross over the islands. Boat traffic will still be able to access the cove from the north end, and the restoration project will create a boating destination. Trump witness Pike opined that the County's project would negatively affect navigation between the upland parcels and the ICW because the project would eliminate the eastern and southern approaches and leave only the northern approach, which could not be used by both parcels fully. The County's expert, Dr. Nicholas De Gennarro, testified that, during his site visits, he observed boat traffic waiting for the drawbridges using the east side of the ICW away from the project site. Dr. De Gennarro noted that several existing structures are closer to the ICW than the proposed County project, which lies 220 feet away from the ICW. Thus, Dr. De Gennarro concluded that the project would not impact navigation in the ICW. With respect to ingress/egress, Dr. De Gennarro acknowledged that access to the Trump and Flagler properties would not be available from the southern and eastern approaches, but concluded that the restriction represented nothing more than an inconvenience. He noted that the southern approach was already a less preferable approach due to existing shoals. At present, there is very little boating in the area outside of special events. While the project would limit the use of boats directly over the one and one-half acres of mangrove islands, the project will provide a boating destination. Further, both the City docks to the north of the site and the temporary docks in front of Flagler's property –- both used for special events –- will still be available under the County's proposal. There is no swimming and very little fishing in the area because of the degraded conditions caused by the dredge hole. Accordingly, while the project will fill a small portion of water currently available, but not used, for swimming, it will greatly enhance swimming by providing a destination for swimmers. The mangroves planned for the intertidal islands are likely to reach a height of fifteen feet and will be interspersed with spartina. The seawall is located six feet above the water line, making a person's view at eye level already several feet above the water. Trump and Flagler's buildings are built at even higher elevations. Therefore, the mangroves will not substantially obscure the view from either property, even at street level where the view is already partially obscured by existing landscaping. The Lagoon is approximately 2,000 feet across. From north to south around one hundred acres of water can now be viewed from the vicinity. Since the intertidal islands only comprise one and one-half acres, the overall impact to the view of the water body is very small. The mangroves in the planters extending out from the seawall will be trimmed to one foot above the seawall; the County requested the condition and committed at hearing to trimming the mangroves if the City of West Palm Beach does not. County photographs show Trump and Flagler's present view of the water body and demonstrate the comparatively small percentage of the view affected by the one and one-half acres of mangrove islands. See County Exhibits 133a-e and 134a-d. The photographs also demonstrated that sizeable palm trees are already part of the existing view. Additionally, the County photographs depicted the small impact that trimmed mangrove planters would have on the view. The area obstructed by the mangrove islands and seagrass is negligible compared to the expanse of the existing view. Trump and Flagler offered no evidence to contradict the County's analysis regarding the scope of the impact on the view. Trump residents Dale McNulty, Dean Goodman, and Charles Lemoine testified that they personally would not want to view mangrove islands regardless of tree size or the size of the islands. Understandably, after years of unfettered view and an open expanse of water, they are opposed to any type of project in this area of the Lagoon. However, Mr. Goodman acknowledged that he would still be able to see the Town of Palm Beach from his unit. The evidence supports a finding that while the project will undoubtedly alter the view of the water from both Trump and Flagler's property, the impact on view is not so significant as to constitute an unreasonable infringement of their riparian rights. Mr. Lemoine stated that he had a forty-foot trawler that he would like to dock in front of his property. He currently docks the boat at a marina twenty miles north of the Trump property. He prefers to bring his boat in stern first and enter slips oriented north to south. He indicated that he can drive his boat in five feet of water, but prefers six feet; however, he also testified that he has brought his boat directly up to the bulkhead in front of Trump, which is approximately a two- or three-foot depth. The witness has seen sailboats and other boats moored near the bulkhead over extended timeframes. Mr. Lemoine speculated that Trump might seek a dock, either alone or in conjunction with Flagler, but admitted that Trump has never applied for a dock permit. He stated that Trump has had discussions about the possibility of a dock over the last fifteen years and speculated that a dock plan might include anything from the purchase/lease of the City docks to a lease of Trump's riparian interests to a third party. By contrast, Trump resident and former Board member Dean Goodman indicated "the idea was to provide an amenity [for] a number of people that are in the building that are boaters." Mr. Goodman stated that he hoped to be able to have a boat in front of the building someday, but did not own a boat in Florida. Association president Dale McNulty explained that, while informal discussions have occurred regarding the possibility of a dock, no official action had been taken. Mr. McNulty characterized the dock plans as being "sort of in the land of wishful thinking." Mr. Pike, while acknowledging that both parcels would still be able to design a dock for their property, opined that the County's project unreasonably limited the size and configuration of the docks possible. Mr. Pike initially admitted that a safe navigation depth for a forty-foot boat, or even a sailboat, was four feet below mean low water (MLW), but stated that he would prefer to design a dock with an additional two-to- three feet of water below the four-foot draft to avoid propeller damage. However, Mr. Pike conceded that he has designed docks for boats in four feet below MLW and ultimately based his own calculations on an assumption of a four-foot draft and one-foot cushion, or five feet below MLW. Mr. Pike also opined that a north-south alignment for boat slips was a preferred slip orientation. Given the bathymetry in the area and the documented seagrasses, Mr. Pike estimated that twenty slips could be designed for the Flagler property, rather than the thirty-four slips provided for by the County Manatee Protection Plan. He thought that a design might accommodate thirty to thirty-two slips for Trump, rather than the forty-slips provided for by the County Manatee Protection Plan. Based on the limitation on number of slips and configurations, the witness opined that the County's project would unreasonably interfere with Trump and Flagler's ability to design a dock. He admitted, though, that the numbers derived from the County Manatee Protection Plan represent a maximum number, rather than a specified or guaranteed number. He further admitted that other agency limitations may further restrict Trump and Flagler's right to dockage. Without a permit application or plan from Trump or Flagler, County witness Robbins concluded that the most reasonable assumption was an owner-oriented facility designed for the building owners/tenants. The County introduced a graphic illustrating areas available for dock construction, with sufficient depth for 35- to 40-foot boats (-6 feet NGVD) and with no seagrasses present. Rule 18-21.004(4)(b)2. limits ownership-oriented facilities generally to forty square feet for each foot of riparian shoreline, giving Trump the ability to apply for a dock that preempted a maximum of 16,000 square feet, and Flagler a maximum of 14,000 square feet. Under the County Manatee Protection Plan, Trump would be limited to forty slips; Flagler would have the potential for thirty-four slips. Mr. Robbins testified that, in his experience, a minus five MLW is a common depth for docks, but that elevations as shallow as a minus four MLW could be used depending on the type of boats and the dock configuration. Mr. Robbins explained that, even with the County's project in place and factoring in the other limitations, Trump would still have 61,842 square feet of potential space within which to design a dock. Flagler would still have 41,481 square feet of potential space, even considering the need to retain a path for ingress and egress from the Trump parcel. A more detailed analysis of the seagrasses might make more square footage available for dock construction. Dr. De Gennarro also evaluated whether a dock could be designed to serve Trump and Flagler's parcels. The vessel owner statistics for the County indicate that at least ninety-five percent of the boats registered in the County are thirty-nine feet or less; consequently, Dr. De Gennarro focused on boats forty feet or less. Dr. De Gennarro considered the water depths and the existence of subaquatic vegetations and concluded that the graphic presented by Mr. Robbins was conservative, but still provided adequate space for both Trump and Flagler to construct appropriate dockage, allowing thirty-eight boats for Trump and thirty-two for Flagler of varying size. However, Dr. De Gennarro concluded that a dock design of forty slips for each would also be possible, depending on the size of the boats. Dr. De Gennarro proposed that a single, double-loaded parallel dock design would be a good layout for a potential docking facility in front of both Trump and Flagler's property that would be protected by the County's proposed islands, provide sufficient water depths, and provide an attractive facility. He specified, however, that the single, double-loaded parallel dock design was simply one of "many" that might work in the given space. Dr. De Gennarro explained that the existing dredge hole would not be a preferable location for either a mooring field or a dock because the deep muck-bottom would drive up the costs for either type of facility. Accordingly, Dr. De Gennarro concluded that the County's project would not foreclose or even substantially restrict the ability to locate a dock in front of Trump and Flagler’s property. The more persuasive evidence supports a finding that neither the right of ingress/egress nor the right to boat in the vicinity is unreasonably infringed upon by the County's project. Trump and Flagler will continue to have reasonable access to navigation. The northerly approach preserved by the County's project will allow for boat traffic to safely navigate in the area. While the southerly and easterly approaches are eliminated by the County's plan, the evidence indicates that the two approaches were less preferable than the northerly approach because of the presence of shoals. Based on the above considerations, the County's project will not unreasonably infringe upon Trump or Flagler's qualified right to a dock. The fact that the project might preclude the design and permitting of a dock that would host very large vessels does not mean that Trump and Flagler's rights regarding docking have been unreasonably infringed. The evidence shows that substantial docking facilities of multiple configurations are still possible even if the County's project is approved. In summary, the County's application for proprietary authorization should be approved. Other Contentions All other contentions raised by Trump and Flagler have been considered and are found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order approving the County's application for a consolidated ERP and consent to use sovereignty submerged lands. DONE AND ENTERED this 24th day of September, 2009, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2009.
The Issue The information-gathering hearing was convened for the purpose of determining the impact of Lake County’s Order denying a rezoning application (“Rezoning”) for the Lake Nellie Crossing Planned Unit Development, Lake County Case No. RZ-20-39-23 (“PUD”), whether the denial of the rezoning application was unreasonable or unfairly burdened the real property subject to Petitioner’s rezoning application, and whether some modification of Petitioner’s proposed use of the property or adjustment to the denial of the rezoning application could be reached.
Conclusions For Petitioner: Cecelia Bonifay, Esquire Thu Pham, Esquire Akerman LLP 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 For Respondent: David Langley, Esquire Lake County Attorney’s Office 315 West Main Street Tavares, Florida 32778 A number of non-party participants appeared at the Zoom conference and were permitted to offer documents and testimony pursuant to limitations established in the November 4, 2021, Notice of Hearing Before a Special Magistrate.
Recommendation Based upon the foregoing Stipulated Findings, the Findings Adduced at Hearing, and the Public Comment, the undersigned concludes that the proposed Rezoning satisfies the requirements of the Lake County Comprehensive Plan and Land Development Code, that there is no reason related to transportation safety to deny the Rezoning, and that the denial of the Rezoning, under the circumstances presented here, is unreasonable or unfairly burdens use of the Property. Therefore, it is recommended that the Lake County Board of County Commissioners approve the application for the Lake Nellie Crossing Planned Unit Development, Lake County Case No. RZ-20-39-23, subject to the conditions previously agreed upon by Lake Nellie, and the following: Stormwater facilities shall be vegetated with native species where possible. Sidewalks shall be constructed within the Project and along the Project’s frontage on Lakeshore Drive and Royal Vista Avenue. In addition to the left turn lane for southbound traffic, Lake Nellie and Lake County shall examine the feasibility of a right turn deceleration lane into the Project for northbound traffic on Lakeshore Drive. If determined to advance safety on Lakeshore Drive, the right turn lane shall meet Florida Department of Transportation specifications for design and length for a 40 MPH road. Land necessary for the construction of a right turn deceleration lane shall not be deducted from the open space calculation qualifying Lake Nellie for 102 units under the one dwelling unit per acre/50 percent open space requirement. If Lake County determines in the future that a roundabout at the entrance to the Project would facilitate traffic flow and enhance safety, Lake Nellie, or its successor homeowners’ association or maintenance entity, shall donate land within its ownership and control to Lake County for use as right- of-way for the roundabout. That donation shall not be deducted from the open space calculation qualifying Lake Nellie for 102 units under the one dwelling unit per acre/50 percent open space requirement. DONE AND ENTERED this 18th day of January, 2022, in Tallahassee, Leon County, Florida. S E. GARY EARLY Special Magistrate 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2022. COPIES FURNISHED: Melanie N. Marsh, Esquire Lake County Attorney's Office Post Office Box 7800 Tavares, Florida 32778 Thu Pham, Esquire Akerman LLP 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 David Langley, Esquire Lake County Attorney Office 315 West Main Street Tavares, Florida 32778 Jennifer Barker, Interim County Manager Lake County, Florida 315 West Main Street Tavares, Florida 32778 Cecelia Bonifay, Esquire Akerman Senterfitt 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 Nicole Blumenauer, Esquire Lake County Attorney's Office 315 West Main Street Tavares, Florida 32778 Sean M. Parks, Chairman Board of County Commissioners Lake County, Florida 315 West Main Street Tavares, Florida 32778
The Issue The issues for determination in this case are: 1) whether the Department of Environmental Protection (DEP) has dredge and fill permitting jurisdiction over a certain body of water known as Lake Blake in Okaloosa County, Florida; 2) if DEP's dredge and fill permitting jurisdiction is established, whether Petitioner qualifies for an exemption from DEP's dredge and fill permitting jurisdiction; and 3) if not otherwise exempt from DEP's dredge and fill permitting jurisdiction, whether Petitioner's application No. 46-0199306-001-EE, seeking to place a modular home on a fill pad in Lake Blake, should be approved by DEP.
Findings Of Fact Parties DEP is the agency of the State of Florida vested with the power and duty to enforce the provisions of Chapters 373 and 403, and the rules promulgated in Chapter 62, Florida Administrative Code. DEP is the only agency involved in these proceedings. Lee Maddan (Maddan) is a long-time resident of Okaloosa County, and the Petitioner in Case No. 03-1499. Maddan is a Respondent in Case No. 03-2040. Maddan has personally observed activities occurring at the Lake Blake property for more than 38 years, including the excavation of the lake. Santa Rosa Three, Inc. (the Corporation), is a Respondent in Case No. 03-2040, and holds fee simple title to the property containing Lake Blake, which is located in unincorporated Okaloosa County between Lewis Street and Clifford Street in Sections 2 and 3, Township 2 South, Range West. Santa Rosa II is also Respondent in Case No. 03-2040, and is a corporate predecessor in interest to the Corporation. Maddan holds equitable title to the Lake Blake property and is in the process of purchasing the fee simple title to the property from the Corporation. Maddan is and was at all material times hereto authorized by the Corporation to enter upon the Lake Blake property, to proceed to develop the land, to obtain permits in his name and to do other acts to prepare the property for Maddan's purchase. History of Lake Blake Lake Blake is an artificially created water body in unincorporated Okaloosa County, having a water surface area slightly less than six acres. There is a small island in the center of the lake. The property surrounding Lake Blake presently consists of both uplands and wetlands. No other water body is visible from Lake Blake. For DEP jurisdictional determination purposes, Lake Blake is located in the Northwest District of Florida. The oldest records of the Lake Blake property dating to 1826, indicate that the property was flat land with natural vegetation dominated by palmetto and galberry. The property historically had no flowing streams. In the 1950's the then owner of the property began excavating a borrow pit on the property. The excavations continued until approximately 1979. As the borrow pit excavations continued a lake formed due to the intrusion of underground water as well as collected rainfall. During the excavation period, and until approximately 1976, the land around the borrow pit was primarily pasture land with no trees or other vegetation. Up to 1976, there was no wetland vegetation growing on the property. Prior to 1960, the natural stormwater flow from the property was to the southwest toward Cinco Bayou, a defined water body of the State of Florida which on a direct line is located approximately one-quarter mile from the property. Cinco Bayou is the body of water of the State nearest to Lake Blake. During the 1960's, a road known as Lewis Street (also known as Mayflower Avenue) was constructed along the southern boundary of the property. At the time of the construction of Lewis Street, the borrow pit was separated into two parts, an eastern and western section. A concrete culvert divided the sections of the borrow pit. At the time of the Lewis Street construction, a stormwater discharge pipe was installed by Okaloosa County and excess water flowed out of the borrow pit only at certain times in direct response to rainfall. The installation of the stormwater discharge pipe on Lewis Street was intended to drain excess rainfall from the borrow pit. Okaloosa County never acquired ownership of the borrow pit for use as a stormwater retention pond. The water body that formed in the borrow pit would come to be called Lewis Street Pond, or Blake Lake, and eventually Lake Blake. The natural flow of the stormwater from the property was further altered in the 1970's when a public elementary school was constructed by Okaloosa County on Lewis Street. The public school is located between the property and Cinco Bayou. Borrow pit operations formally ceased in September of 1980 when DEP's predecessor agency, the Department of Environmental Regulation (DER), entered an order requiring the cessation of mining operations. The physical operations had actually ceased a few years before the DER order. Lake Blake originally resulted from collected rainfall, as well as underground water intrusion in the borrow pit. Over the subsequent years and at the present time, additional diverted stormwater runoff collected in the lake as a result of Okaloosa County's stormwater drainage system. Lake Blake today is an artificial body of water owned entirely by one person. Residential housing is located on property surrounding Lake Blake. The lake is occasionally utilized for recreational purposes, including fishing. The property surrounding the lake is not open to the general public, and the entrances to the property are fenced. For purposes of this proceeding, there are no threatened or endangered plants on the property. Okaloosa County Stormwater Drainage System Okaloosa County has constructed a stormwater drainage system that runs through the Lake Blake drainage area. As part of this stormwater drainage system, Lake Blake collects diverted stormwater discharge from surrounding areas which have been previously developed. Residential neighborhoods are close to the area, specifically the Berkshire Woods Subdivision. Indeed, as a condition for the development of the Berkshire Woods Subdivision in 1976, the Okaloosa County Planning Commission required that a former owner of the property, Ron Blake, excavate the lake and have it made ready for stormwater drainage from the proposed development of the Berkshire Woods Subdivision. In addition to the residential areas and the public school to the south, there is a private school to the north across the road on Clifford Street which also diverts water to the lake from its campus and parking lots Okaloosa County has installed several pipes which carry stormwater from the surrounding developed areas into Lake Blake. The only drainage out of Lake Blake is via the stormwater discharge pipe located at the southern boundary of the property on Lewis Street which was installed by Okaloosa County in the 1960's. Okaloosa County's stormwater discharge system serving Lake Blake is integrated into a series of interconnecting underground stormwater pipes which route the flow of the water for approximately one-half mile before ultimately discharging water into Cinco Bayou. Okaloosa County's stormwater discharge system which ultimately connects Lake Blake with Cinco Bayou is composed of buried pipes. DEP considers buried pipes or culverts which convey stormwater as excavated water bodies. The installation of Okaloosa County's stormwater discharge system required the excavation of land. Under DEP's interpretation of its rules, specifically Rule 62-312.030(2), Florida Administrative Code, the underground installation of stormwater pipes is sufficient to establish a series of excavated water bodies which connect Lake Blake to Cinco Bayou. Prior to the installation of Okaloosa County's stormwater discharge pipe on Lewis Street in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property containing Lake Blake. The stormwater discharge pipe has continuously existed on the southern boundary of the property since its installation in the 1960's to the present. Lake Blake was not originally designed, constructed, nor permitted as a stormwater treatment or retention pond. Lake Blake incidentally resulted from the borrow pit excavations. Okaloosa County, however, has at least since 1976 utilized Lake Blake as part of its stormwater drainage system. Okaloosa County never acquired title to Lake Blake. In 1981, the Okaloosa County Board of Commissioners (who were not the owners of the property) applied for, and were issued by DER, a Construction Permit (No. RC-46-80-2031, dated May 27, 1981, which expired November 27, 1981), for "Blake Lake Modifications," which permit stated it was "to modify an existing stormwater drainage system." This permit allowed for, among other items, construction of "two earthen berms in Blake Lake" and "the diversion of lake flow from the western lake to the eastern lake." Although attempts were made to construct the two earthen berms, due to the white clay composition of the soil the berms were not successfully established. In 1984 DER issued another Construction Permit (No. 460853421 dated August 20, 1984, which expired August 15, 1987) to the Okaloosa County Board of Commissioners (who again were not the owners of the property) for the purpose constructing "two drainage channels . . . from a berm separating East and West Blake Lake." The drainage channels were thereafter completed and the east and west portions of the lake were eventually connected. On August 14, 1984, Okaloosa County also filed a Notice of New Stormwater Discharge with DER which proposed a re-routing of an existing stormwater drainage system which then diverted stormwater from the Candlewood Subdivision and Navy Street into Lake Blake. The stated purpose of the re-routing of the stormwater drainage system away from Lake Blake was to address flooding problems in the Candlewood Subdivision. By letter dated August 21, 1984, DER informed Okaloosa County that "the stormwater discharge is exempt from stormwater permitting requirements of the Department pursuant to Florida Administrative Code Rule 17-25.03(2)(c)." DER came to this conclusion in 1984 because the proposed project was "the modification of an existing County stormwater management system not serving a new development or increasing pollution loading." Although Lake Blake was utilized by Okaloosa County as part of the existing Okaloosa County stormwater drainage system, which in 1984 qualified for a DER stormwater permitting exemption, nothing pertaining to this stormwater permitting exemption supports a finding that Lake Blake was originally constructed, permitted or designed solely for the purpose of stormwater treatment so as to qualify for an exemption from DEP's dredge and fill jurisdiction under Rule 62-312.050(4), Florida Administrative Code. Dredge and Fill Permitting Jurisdiction Prior to the installation of Okaloosa County's stormwater discharge pipes on the property in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property and Lake Blake. Under current law, the Northwest District of Florida is governed by separate jurisdictional determination provisions. In order to initially establish DEP's dredge and fill permitting jurisdiction over wetlands and surface waters in the Northwest District, DEP must demonstrate that the wetlands and surface waters are connected to the surface waters of the State. Since 1995, isolated wetlands in all the rest of the State of Florida are regulated by DEP without regard to any connection to the surface waters of the State. In the Northwest District under Rule 62-312.030(2), Florida Administrative Code, "surface waters of the state are those waters listed below and excavated water bodies, except for those exempted by Section 62-312.050(4), F.A.C., which connect directly or via an excavated water body or series of excavated water bodies . . ." to waters of the State. Under Rule 62- 312.045, Florida Administrative Code, however, "[i]solated wetlands that infrequently flow or otherwise exchange water with a described water body are not intended to be included within the dredge and fill jurisdiction of the Department." By letter dated April 24, 2001, DEP advised Santa Rosa II, Inc., that the Lake Blake property was not subject to DEP's dredge and fill jurisdiction. The letter was sent in response to an application seeking to fill 2.5 acres of the southeastern portion of the lake for the construction of an apartment complex. The letter was issued by DEP's Northwest District, and signed by Martin Gawronski on behalf of Larry O'Donnell, the Environmental Manager for Permitting Section of the Northwest District. The letter was issued after a visit to the property by one or more DEP employees, and based on an informal determination that Lake Blake was not connected to the waters of the State. In May of 2001, the United States Army Corps of Engineers determined that the Lake Blake property was not within its jurisdiction. Subsequent to the issuance of the April 24, 2001, non- jurisdictional letter, certain employees of Okaloosa County (not specifically named in these proceedings) contacted DEP seeking reconsideration of DEP's decision. These Okaloosa County employees thereafter met with DEP employees at the property and communicated by telephone with DEP employees while DEP considered a re-determination of its non-jurisdictional decision. The property owners were then notified that DEP was in the process of re-evaluating its non-jurisdictional decision. By letter dated October 24, 2001, DEP advised Santa Rosa II, Inc., that DEP had made a "correction" to the letter of April 24, 2001, and had determined that the property was in fact subject to DEP's dredge and fill permitting jurisdiction, because the "pond" was "connected to jurisdictional waters" of the State. The October 24, 2001 letter, like the previous letter, was issued from DEP's Northwest District signed by Martin Gawronski on behalf of Larry O'Donnell. Between April 24, 2001, and October 24, 2001, there were no man-made alterations made to the Lake Blake property. Between March and April 2002, Maddan filled in a portion of the lake and lacustrine wetlands. Maddan also built two pedestrian footbridges over the lake to the small island in the middle of the lake. DEP asserted its dredge and fill permitting jurisdiction based upon the existence of a series of underground pipes installed by Okaloosa County as part of its stormwater drainage system that conveys excess stormwater from Lake Blake to Cinco Bayou. Installation of the underground pipes required excavation. Neither the April 24, 2001 letter, nor the subsequent October 24, 2001, letter issued by the Northwest District, is binding determination of DEP's dredge and fill permitting jurisdiction over the wetlands and surface waters of Lake Blake. The authority to make a binding DEP dredge and fill permitting jurisdictional determination is vested in Dr. John Tobe, Environmental Administrator of the Wetland Evaluation and Delineation Section and his staff. DEP's Site Inspections/Jurisdictional Determination In April of 2002, Stacy Owens, DEP Environmental Specialist, received a telephone call from Chuck Bonta with the Okaloosa County Code Enforcement Department, and an unnamed homeowner, complaining that Lee Maddan had built two unpermitted pedestrian footbridges at Lake Blake and was also filling in part of Lake Blake. Ms. Owens initially investigated whether DEP had issued any permits for the placement of fill in Lake Blake or the surrounding wetlands, and determined that no permits had been issued. Ms. Owens further discovered that a prior Notice of Violation and Orders for Corrective Action had been issued by DER in 1980 against the Okaloosa County Board of Commissioners and Lloyd D. Junger (a lessor conducting mining operations). The 1980 case pertained to the discharge of turbidities from the Lewis Street Pond into Cinco Bayou. A final order in that case was entered on January 5, 1981, requiring Okaloosa County to make payment to DER and take corrective action. On April 23, 2002, Ms. Owens followed up on these complaints by performing a site visit to Lake Blake. At this time Ms. Owens observed two unpermitted pedestrian footbridges, unpermitted fill in a finger of Lake Blake, and unpermitted fill within a 20-foot by 25-foot lacustrine wetland area. On April 25, 2002, Maddan came to Ms. Owens' office to discuss whether permits were necessary for the placement of fill at Lake Blake. At that time Maddan showed Ms. Owens the previous letters of April 24, 2001, and October 24, 2001, which had been sent from the Northwest District of DEP. Maddan stated that in his opinion no dredge and fill permit was needed because Lake Blake was not within the jurisdiction of DEP. Ms. Owens was then informed by employees of Okaloosa County that there were underground pipes connecting Lake Blake to Cinco Bayou. She obtained from Gary Bogan of Okaloosa County an aerial map of the drainage area for Lake Blake which identified the location of the culvert on Lewis Street which conveys excess flow from Lake Blake to Cinco Bayou. On April 30, 2002, Ms. Owens performed another site inspection at Lake Blake. During this site inspection, she tracked the connection from Lake Blake to Cinco Bayou by personal observation. After her second site inspection, Ms. Owens e-mailed her findings to Dr. Tobe, and inquired whether the underground pipes satisfied the DEP requirements for connection to a water body of the State for the purpose of establishing DEP's dredge and fill permitting jurisdiction. Dr. Tobe replied to Ms. Owens that an underground pipe connection would satisfy DEP's jurisdictional requirements. On June 25, 2002, Dr. Tobe, Ms. Owens, and a DEP wetland delineation team visited the Lake Blake property for the purpose of making a jurisdictional determination. Maddan also accompanied Dr. Tobe and his team on the day of the site inspection. As a result of this inspection, Dr. Tobe completed and filed a Field Report for Lake Blake, Okaloosa County, dated June 25, 2002. As indicated in his Field Report, Dr. Tobe and his wetland delineation team determined that for jurisdictional purposes, Lake Blake was connected to the waters of the State by reason of the culvert on Lewis Street that ultimately discharges into Cinco Bayou. At the time of his inspection on June 22, 2002, Dr. Tobe did not observe water flowing from Lake Blake into the Lewis Street culvert. Dr. Tobe attributed this to abnormal drought conditions the area was then experiencing. Maddan, who has observed this area for many years, testified that the lake was near or slightly less than its normal water level on that date. Dr. Tobe conducted a further examination of the area to determine the ordinary high water line, and concluded that Lake Blake would at ordinary high water level flow into the Lewis Street culvert on a sufficiently regular frequency into Cinco Bayou, a water body of the State, in order to establish DEP's dredge and fill jurisdiction. In determining whether water exchange frequency is sufficient to establish jurisdiction, there is a DEP Interoffice Memorandum of October 31, 1988, setting out 25-year, 24-hour criteria which is used as guidance, but the criteria stated in this Memorandum have not been adopted as a rule, and are not singularly determinative of DEP's jurisdiction. At this time, Dr. Tobe and his team also performed a wetland boundary delineation. Dr. Tobe found hydric soils and wetland plants dominating the area. The wetland delineation boundary was determined by the continual interpretation of vegetation, soils, and hydrologic indicators. As a result of his inspection and wetland boundary delineation, Dr. Tobe concluded that unpermitted fill had been placed within the surface waters of the State, and in lacustrine wetlands.. Thereafter on July 18, 2002, DEP sent Maddan a Warning Letter (DF-SO-46-022) requesting that Maddan cease dredging, filling or construction activities at Lake Blake without obtaining a permit. Subsequent to DEP's sending Maddan the Warning Letter of July 18, 2002, Stacy Owens visited the Lake Blake site on numerous occasions beginning in October of 2002, and continuing through July of 2003. On most of these site visits Ms. Owens observed water flowing from Lake Blake through the Lewis Street culvert. Ms. Owens documented water flowing from Lake Blake through the Lewis Street culvert on October 29, 2002, November 5, 2002, May 20, 2003, June 20, 2003, June 23, 2003, June 27, 2003, and July 8, 2003. The area was not experiencing abnormally excessive rainfall events at the times that Ms. Owens documented water flowing from Lake Blake into the Lewis Street culvert. Maddan testified that in his personal observation over many years, Lake Blake generally discharges excess stormwater into the Lewis Street culvert only as a result from a significant rainfall event. Lake Blake discharges water into the Lewis Street culvert at regular intervals. The water discharged from Lake Blake ultimately is released through the Okaloosa County stormwater drainage system into the surface waters of Cinco Bayou, a water body of the State of Florida. The Okaloosa County stormwater drainage system connecting Lake Blake to Cinco Bayou is a series of excavated water bodies. Lake Blake is connected to the surface waters of Cinco Bayou, and regularly exchanges water with Cinco Bayou. Exemptions from DEP's Jurisdiction To assert dredge and fill permitting jurisdiction over this property, not only must Lake Blake be connected to the waters of the State, but the property must not be otherwise exempt from dredge and fill permitting jurisdiction under either statute or rule. On August 29, 2002, under the authority of the Corporation, Maddan filed a "Joint Application for Works in the Waters of Florida" with DEP requesting an exemption from DEP's dredge and fill permitting jurisdiction under Rule Chapter 17- 312, re-codified as Rule Chapter 62-312. Rule 62-312.050, Florida Administrative Code, sets out the recognized exemptions to DEP's dredge and fill permitting jurisdiction. Maddan primarily relies on Rule 62-312.050(4) which provides that "[n]o permit under this chapter shall be required for dredging or filling in waters which are contained in those artificially constructed stormwater treatment and conveyance systems designed solely for the purpose of stormwater treatment and that are regulated by the Department or the water management district." Lake Blake, however, is the result of excavations in a borrow pit. Because of surrounding development, Lake Blake receives stormwater runoff; however, the lake was not "designed solely for the purpose of stormwater treatment," and cannot therefore qualify for this exemption. Maddan also cites Rule 62-312.050(1)(g), Florida Administrative Code, which provides an exemption for the "construction of seawalls or riprap, including only that backfilling needed to level land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control." Even assuming that the filling of the finger of Lake Blake meets the test of construction of a seawall, there is no evidence that such filling of Lake Blake was ever subjected to appropriate water quality tests, much less meeting such water quality tests as well as the other requirements of this exemption. In addition to the exemptions established by Rule 62- 312.050, Maddan cites statutory exemptions. The definition of "waters" which are regulated under Chapter 403 as set forth in Section 403.031(13), provides in pertinent part that "[w]aters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water." Although Lake Blake is owned entirely by one person, this provision does not exempt Lake Blake because the lake actually discharges on the surface waters of Cinco Bayou. Maddan also cites Section 403.812, which provides that "[t]he department shall not require dredge and fill permits for stormwater management systems where such systems are located landward of the point of connection to waters of the state and are designed, constructed operated and maintained for stormwater treatment, flood attenuation, or irrigation." Although Lake Blake has been utilized by Okaloosa County's stormwater drainage system which is located landward of Cinco Bayou, the lake was not designed nor constructed for stormwater treatment, flood attenuation or irrigation, and it is not being operated nor maintained for stormwater treatment, flood attenuation or irrigation. Lake Blake does not qualify for an exemption from DEP's dredge and fill permitting jurisdiction. Dredge and Fill Permit Denial On September 30, 2002, Maddan was notified of DEP's denial of his application to place a modular home on a fill pad in Lake Blake. Because Maddan took the position that DEP did not have dredge and fill jurisdiction over Lake Blake, or alternatively that Lake was exempt from DEP's jurisdiction, an analysis of whether Maddan's application might be approved under Rule 62- 312.060(5), Florida Administrative Code, has not been done. DEP has not performed any analysis of water quality standards nor public interest assessment required by the rule, and Maddan offered no evidence which would be necessary to make such determinations.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered upholding denial of Maddan's Permit Application No. 46-0199306- 001-EE. DONE AND ENTERED this 10th day of October, 2003, in Tallahassee, Leon County, Florida. S RICHARD A. HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2003. COPIES FURNISHED: Charles T. Collette, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 James E. Moore, Esquire Post Office Box 746 Niceville, Florida 32588 Robert W. Stills, Jr., Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether FDOT has provided reasonable assurances that the activities it proposes to conduct pursuant to proposed District SWM Permit Application No. 940606-10, WRM Permit Application No. 940606-2-D and modification to ROW Permit No. 2584 will comply with the relevant permit criteria set forth in Chapters 373 and 403, F.S., and applicable rules and criteria promulgated thereunder.
Findings Of Fact THE PARTIES Petitioner, 1000 Friends of Florida (1000 Friends), is a not-for-profit, tax exempt membership corporation, organized and existing under the laws of the State of Florida. The principal office of 1000 Friends is 926 East Park Avenue, Tallahassee, Florida 32314 and it also maintains an office at 3305 College Avenue, Ft. Lauderdale, Florida 33314. Petitioner, Florida Bay Initiative, Inc. (FBII), is an entity incorporated under the laws of Florida with its principal office located at 250 Australian Avenue South, Suite 500, West Palm Beach, Florida 33401. Petitioner, the Florida Keys Fishing Guides Association, is an association of sport fishing guides who live in the Florida Keys and is headquartered at 138 Royal Lane, Islamorada, Florida 33036. Petitioner, Michael Collins, is a private individual. His address is 138 Royal Lane, Islamorada, Florida 33036. Petitioner, Charles W. Causey, is a private individual. His address is Post Office Box 448, Islamorada, Florida 33036. Petitioner, the Florida Keys Concerned Citizens Coalition (FKCC), is a not-for-profit Florida corporation whose address is West Shore Drive, Big Pine Key, Florida 33043. Petitioner, AG Intus, Inc., filed a Notice of Voluntary Dismissal on August 9, 1996. DOAH Case 95-5524, the proceeding filed by Intus, was previously consolidated with the other cases to this proceeding. On August 12, 1996, the Intus case was severed from this proceeding and the Intus hearing cancelled. Respondent, the South Florida Water Management District (the District or SFWMD), is a public corporation in the State of Florida existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, F.S., and Title 40E, F.A.C., as a multi-purpose water management district, with its principle office in West Palm Beach, Florida. Respondent, the Florida Department of Transportation (FDOT), is an agency of the State of Florida. Its District Six address is 1000 N.W. 111th Avenue, Miami, Florida 33172. Intervenor, Monroe County, is a political subdivision of the State of Florida. For the purposes of this proceeding the address for Monroe County is c/o Apgar and Pelham, 909 East Park Avenue, Tallahassee, Florida 32301. The District, FDOT and Monroe County did not object to the standing of the Petitioners at the formal hearing and represented that they will not object to the standing in the event of an appeal. Based on the representations of the Respondents, the Petitioners were not required to put on a case as to their standing. THE THREE PERMIT APPLICATIONS FDOT has applied to the District for a Wetland Resource Management (WRM) permit, a Surface Water Management (SWM) permit, and a Right of Way (ROW) occupancy permit. On June 6, 1994, the Applicant submitted applications for surface water management and wetland resource management permits for the purpose of widening and modifying this 20.4 mile stretch of U.S. 1. The surface water management permit application is identified as Application No. 940606-10. The wetland resource management permit application is identified as Application No. 940606-2-D. On October 24, 1995, the District issued Staff Reports on Permit Application No. 960606-10 and Permit Application No. 94060-2-D. These Staff Reports recommended issuance of the permits subject to general and special conditions as specified therein. An addendum to the staff report was issued November 3, 1995. On September 27, 1994, the Applicant submitted a request to modify its existing ROW Occupancy Permit to enable it to replace the bridge where U.S. 1 crosses the C-111 Canal. The land encompassed by the ROW occupancy permit challenged in this proceeding is located in Section 16 and 17, Township 59 South, Range 39 East, Dade County, Florida. A draft right-of-way occupancy permit with standard limiting and special conditions was produced as part of a package that went to the Governing Board and others. The proposed authorization for use of the ROW is for the following: REMOVAL OF EXISTING U.S. HIGHWAY 1 BRIDGE AND REPLACEMENT WITH A NEW FIXED BRIDGE. PROJECT INCLUDES CONSTRUCTION OF A NEW SERVICE/ACCESS ROAD, 2 DETENTION PONDS, 2 CATCH BASINS, 2-15" R.C.P. OUTFALLS, BOAT RAMP WITH LOADING DOCK, PARKING AREA, PEDESTRIAN GATE AT S-197, FENCING AND WILDLIFE CROSSING ALL WITHIN THE NORTH AND SOUTH RIGHT OF WAY OF C-111 (STATION 938+00 - 955+00). The draft right-of-way occupancy permit modification, identified as “SFWMD PERMIT NO. MOD 2548," should correctly be identified at “SFWMD PERMIT NO. MOD 2584.” The numbers “8” and “4” were inadvertently transposed. STIPULATIONS AS TO APPLICABLE LAW The parties have accurately set forth the applicable permitting criteria and the appropriate Basis of Review in their prehearing stipulation. CRITERIA FOR ROW PERMIT Rule 40E-6.301, Florida Administrative Code, provides, in pertinent part, as follows: In determining whether an occupancy permit should be issued, the District shall consider whether the proposed activity: interferes with the present or future construction, alteration, operation or maintenance of the works of the District; is consistent with the policy and objectives of Chapter 373 F.S., the legislative declaration of policy contained in Section 373.016, F.S. and the state water policy, Chapter 17-40, F.A.C.; has an actual or potential negative impact upon environmentally sensitive areas, which include: wetlands; endangered or threatened species habitat; aquatic preserves; outstanding Florida waters; federal, state and privately owned parks and wildlife management areas; designated areas of critical state concern; lands purchased by federal, state and local governments for the purpose of environmental protection, water resource protection and esthetics; and lands which contain native terrestrial plant species in significant amounts. Environmentally sensitive areas include areas on and off- site that are affected by activities which occur on, or are initiated from, the District’s works; degrades water quality within the receiving water body or fails to meet the provisions of Ch. 373, F.S., the state water policy, and Ch. 40E, F.A.C.; involves a discharge of wastewater from a new wastewater source or an increased discharge from an existing wastewater source; will discharge debris or aquatic weeds into District lands or works or cause erosion or shoaling within the works of the District; is supported by financial assurances, which will ensure that the proposed activity will be conducted in accordance with Chapter 373, F.S., and Chapter 40E-6, F.A.C.; presents an increased liability risk to the District; meets the general and specific criteria in the Basis of Review which is incorporated by reference in Rule 40E- 6.091, F.A.C.; interferes with actual or potential public use of the District’s works or public, recreational or other facilities not within the District’s works; is consistent with local zoning and other private land uses in the area; interferes with the quality or quantity of a public or private water supply; meets applicable criteria in Chapters 40E-61 and 40E-62, F.A.C.; ROW occupancy permits typically have standard limiting conditions which are incorporated as part of the permit. The permit may also have special limiting conditions. CRITERIA FOR PERMITTING THE SWM SYSTEM Rule 40E-4.301(1), Florida Administrative Code, contains the following criteria that, at the times pertinent to this proceeding, were used by SFWMD in determining whether to permit a surface water management system: In order to obtain or modify a permit under this chapter, an applicant must give reasonable assurances that the surface water system: provides adequate flood protection and drainage, without causing over- drainage, will not cause adverse water quality and quantity impacts on receiving waters and adjacent lands regulated pursuant to Chapter 373, F.S., will not cause discharges which result in any violations, in surface waters of the state, of the standards and criteria of chapter 17-302, F.A.C., will not cause adverse on-site or off-site impacts on surface and groundwater levels and flows, including impacts to sources of water supply and wetland hydrology, will not cause adverse environmental impacts, can be effectively operated and maintained, will not adversely affect public health and safety, is consistent with the State Water Policy, chapter 17-40, F.A.C., for a DRI with a signed Preliminary Development Agreement with the Florida Department of Community Affairs, pursuant to section 380.06(8), F.S., provides a surface water management system for that portion of the site approval for development which is able to operate separately from the surface water management system for the balance of the project site and still meet applicable District criteria. meets any applicable basin criteria in chapter 40E-41, F.A.C., will not otherwise be harmful to the water resources of the District, will not interfere with the legal rights of others as defined in subsection 17-40.401(8), F.A.C., is not against public policy, will meet general and specific criteria in the document described in subsection 40E-4.091(1)(a), F.A.C., (0) will meet criteria for isolated wetlands, which are found in Appendix 7 of the document described in rule 40E- 4.091(1)(a), F.A.C., (p) will meet the criteria for above ground impoundments, which are found in Appendix 6 of the document described in rule 40E-4.091(1)(a), F.A.C. The SFWMD has adopted certain procedures and criteria contained in a document, referred to as “Basis of Review for Surface Water Management Permit Applications Within The South Florida Water Management District” (BOR). Subsection 40E-4.091(1)(a), F.A.C. incorporates this document by reference into Chapter 40E-4, F.A.C. The BOR is a document that is “described in subsection 40E-4.091(1)(a), F.A.C.,” within the meaning of Rule 40E-4.301(1), F.A.C. The BOR establishes a rebuttable presumption that water quality criteria are met through specified volumetric retention and detention requirements. These performance based criteria are designed to be flexible. CRITERIA FOR THE WRM PERMIT In 1992 DEP entered into an Operating Agreement with the District, which delegated to the District responsibility for issuing wetland resource management (WRM) permits, which are required for dredge and fill activities in wetlands. Both DEP and the District implement the same wetland resource permit and MSSW permit rules. The District agrees with DEP's interpretation and application of the WRM permitting rules and non-rule policy, and applies the same when issuing such permits. Section 403.918, Florida Statutes (1991), provides the pertinent criteria that must be applied by the District in determining whether to grant or deny the WRM permit. That criteria requires the applicant to provide reasonable assurance that water quality standards will not be violated. In addition, for projects in OFW, the applicant must provide reasonable assurance that the project is clearly in the public interest. THE PUBLIC INTEREST TEST The District is required to balance the following criteria, found at Section 403.918(2)(a), Florida Statutes (1991), in determining whether a project is clearly within the public interest: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. MITIGATION If the applicant is unable to otherwise meet the public interest test, the District shall, pursuant to Section 403.918(2)(b), Florida Statutes, “consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project . . .” The District thereafter re-evaluates the project to determine whether the project, as mitigated, meets the public interest test. The criteria for mitigation is found in Chapters 373 and 403, Florida Statutes, Title 40 E (including the Basis of Review) and Rule 62-312, Florida Administrative Code. Rule 62-312.330, Florida Administrative Code, states the general criteria for evaluating mitigation proposals as follows: The goal of the mitigation proposal shall be to offset the expected adverse impact of the project that have resulted in the project being deemed unpermittable such that the resulting project with mitigation is not contrary to the public interest or, in the case of Outstanding Florida Waters, is clearly in the public interest. Each project must be separately evaluated to determine whether the proposed mitigation is sufficient. Rule 62-312.340, Florida Administrative Code, provides guidelines that are to be used in evaluating proposed mitigation projects. GENERAL DESCRIPTION OF THE PROJECT AREA FDOT proposes to widen a 20.4 mile portion of U.S. 1 in southern Dade County and northern Monroe County. Approximately seven miles of the project area is in Monroe County and approximately thirteen miles is in Dade County. The northern terminus of the project is the intersection of U.S. 1 and Card Sound Road, which is located in Dade County south of Florida City. The southern terminus of the project is the intersection of U.S. 1 and Abaco Road on Key Largo in Monroe County. The corridor of the proposed project passes through Sections 6, 7, 16, 18, 21, 27, 28, Township 59 South, Range 39 East; Sections 24, 25, 36, Township 58 South, Range 38 East; Sections 16, 19, 30, 31, Township 58 South, Range 39 East, Sections 16, 30, 31, Township 60 South, Range 40 East; Sections 25, 26, Township 60 South, Ranges 39 East, Dade and Monroe Counties, Florida. U.S. 1 is the main highway between northern Monroe County and southern Dade County. The only other road between Monroe County and Dade County is Card Sound Road. The Florida Keys is designated as an Area of Critical State Concern, pursuant to Section 380.0552, Florida Statutes. The Dade County portion of the road, north of the C- 111 canal, lies within typical Everglades habitat, which is classified as environmentally protected lands of Dade County. Most of the project corridor in Dade County is part of or adjacent to the Everglades National Park. Valuable wetlands exist throughout the project corridor. The following bodies of water will receive discharges if the surface water management system is permitted: C-111 Canal, Jewfish Creek, Lake Surprise, Blackwater Sound, Barnes Sound, Little Blackwater Sound, Long Sound, Manatee Bay, Sarge Lake, andManatee Creek. The receiving bodies of water are Outstanding Florida Waters (OFWs) or are connected to OFWs. THE EXISTING ROADWAY As it presently exists in the project area, U.S. 1 is a two lane undivided highway with two passing zones that are each one mile in length. Each travel lane on the existing facility is twelve feet wide. The existing shoulder on either side of the road consists of four feet of pavement and six feet of grassed area. FDOT Exhibit 7 accurately depicts the existing roadway typical section. Exotic vegetation, generally limited to the areas immediately adjacent to the highway, exist throughout the project corridor. These exotic species are present because FDOT has failed to properly maintain its right of way. A clear zone is an unobstructed area that includes the shoulder of the roadway and typically extends beyond the shoulder. The purpose of the clear zone is to provide a driver who has lost control of his or her vehicle a sufficient clear recovery area to regain control of the vehicle so that it can be maneuvered back onto the road. The clear zone for the existing road is inadequate to provide a safe recovery area. There is at present a two lane bridge over Manatee Creek, a two-lane bridge crossing the C-111 Canal, a bascule bridge, which is a drawbridge, over Jewfish Creek, and a two lane causeway through Lake Surprise. The two existing passing zones are located in Dade County. The first is south of U.S. 1’s intersection with the C-111 canal between mile markers 113-115. The second passing lane is approximately four miles south of the northern terminus of the project between mile markers 120-122. Each existing passing zone is undivided and consists of two northbound lanes and two southbound lanes, with each travel lane being twelve feet in width. The shoulders in the passing zones are the same as for the typical section. A surface water management (SWM) system is defined by Rule 40E-4.021(5), Florida Administrative Code , as being "the collection of devices, improvements or natural systems whereby surface waters are controlled, impounded, or obstructed.". There is no surface water management system presently associated with the road. The roadbed is elevated approximately five feet above mean sea level according to the National Geodetic Vertical Datum and was constructed on the old railroad bed of the Florida East Coast Railroad. No hydrologic culverts have been placed within the roadbed. Consequently, surface water flow between the eastern and western sides of the road north of the C-111 Canal has been cut off. C-109 AND C-111 CANALS In the 1960's, the C-109 and C-111 canals were constructed as part of an overall water management system in the area. As a result of the roadbed and the canals, water has been impounded on the western side of U.S. 1 at a level higher than on the eastern side. Due to cutoff of waterflow by the roadbed embankment, historic freshwater flow between the eastern and western sides of the project area has been restricted, which has resulted in an adverse impact on the Everglades ecosystem north of the C-111 Canal. The restricted water flow has resulted in less fresh water being available for shorter periods of time. Consequently, aquatic life has had reduced opportunities to develop. The restricted flow also has impeded the ability of aquatic life to reach freshwater areas during times of drought. On the east side of the road marine conditions have displaced what naturally should be freshwater conditions. PROJECT HISTORY While FDOT has been aware of traffic safety and hurricane evacuations concerns on the roadway for a long time, the current project originated in 1986 when Monroe County identified this project as a need in its 1986 Comprehensive Plan. Pursuant to agency practice, the proposed project was incorporated into FDOT's five year work program and a study was performed pursuant to FDOT’s Project Development and Environment (PD&E) Manual. FDOT's PD&E manual describes the process by which FDOT determines whether to construct or improve a road. The PD&E process includes an Environmental Impact Statement (EIS) to analyze existing conditions, assess the need for improvement, and develop alternatives. A Draft EIS is performed and circulated for comment to governmental agencies and the public. Based upon comments and further review a Final EIS is prepared. Metric Engineering ("Metric") began the PD&E study of the project in 1988 pursuant to a contract with FDOT. Metric identified seven factors which it concluded supported the need for the project. First, the improved corridor would improve the linkage between the four lane road at the northern terminus and the four lane road at the southern terminus. Second, the project would improve navigation by replacing the existing bascule bridge at Jewfish Creek. Third, the project would improve the level of service for the road. Fourth, the project would improve the safety of the road. Fifth, the project would improve the clearance time for hurricane evacuation. Sixth, the project was consistent with the long range transportation plans adopted by Monroe County. Seventh, the project would accommodate increased traffic, which can be expected with or without the project. Based on the needs evaluation, Metric performed a corridor analysis to determine the best way to get from Florida City to Key Largo, including improving only Card Sound Road, improving only U.S. 1, or improving a combination of the two. Metric concluded that the best resolution was to improve the project corridor. Metric also analyzed various alternatives in an effort to reduce the size of the typical section of the roadway in the U.S. 1 corridor and thereby minimize environmental impacts of the project. Because of concerns from Everglades National Park that no aspects of the project construction occur within its boundaries, FDOT agreed to conduct all construction east of FDOT's existing right of way line. The conclusions of the Metric studies were memorialized in a Final EIS and Final Engineering Report published in 1992. Conclusions regarding alternatives and project needs were then incorporated into the permit application and have continued to be updated. The 1992 version of the project was for a four lane roadway with four lane bridges throughout the project corridor. Subsequent to its June 6, 1994, permit applications to the District for a four lane roadway, FDOT went through an extensive process of providing the District with additional information in an effort to provide the District with the necessary reasonable assurance that the proposed project would comply with the permit criteria. The final series of modifications contained the three lane alternative, which will be described in detail below and is now the subject of this proceeding. The three lane proposal is a compromise that FDOT agreed to in an effort to minimize the direct, secondary, and cumulative impacts of the project. Monroe County passed Resolution No. 315-1995 on September 7, 1995, asking FDOT to build a three-lane road on a four-lane embankment. This resolution provided, in part, that “. . . Monroe County finds that the '3-lane alternative' as described in the Statement of Agency Commitments is the most viable proposal of those considered, because it balances the needs for a widened highway with safeguards designed to address secondary impacts.” The secondary impacts referred to in the resolution included concerns that two southbound lanes would result in more growth. The rationale behind the resolution was that more growth would result from two southbound lanes than from one southbound lane with the proposed passing zones. In response to the request of Monroe County and in response to a similar request made by the District, FDOT notified the District by letter dated September 5, 1996 of FDOT's decision to redesign the project to change the roadway from four to three lanes. FDOT HAS MINIMIZED THE IMPACTS OF THE PROJECT During the PD&E process prior to permit application FDOT studied project needs and alternative alignments, and conducted corridor analyses. FDOT originally considered a proposal that included approximately 250 acres of wetlands impacts. At the District's suggestion, FDOT revised its proposal prior to the permit application to reduce the wetland impacts and project footprint. The application submitted contained approximately 165 acres of impact. FDOT changed the typical section of the proposed roadway again after substantial interagency coordination in an effort to reduce wetlands impacts even further. FDOT agreed to reduce the footprint by changing the design of the median from 22 feet and a Jersey barrier (which is a minimum barrier) to 20 feet with a tri-beam rail barrier. The more substantial barrier was added because the median was narrowed. Additionally, instead of ten-foot paved shoulders on each side of the median, FDOT would use two-foot paved shoulders with sixteen feet of grass in the middle. These minimization efforts resulted in a wetland impacts decrease from 164 acres to 149.07 acres, the current impact of the project. Avoidance, or choosing alternate routes to avoid impacts to wetlands, was not a possible option because only wetlands and open waters exist between the northern and southern terminus of the project. FDOT explored all reasonable alternatives to the proposed project, including a two lane alternative proposed by a consultant for FBII. As discussed below, FDOT did not adopt the two-lane alternative, because the alternative did not address all of FDOT's identified needs for the project. FBII prepared a report with a two-lane alternative to the proposed project. FBII's original proposal included one 12-foot northbound lane with a 10-foot paved shoulder covered with thermoplastic rumble strips to deter vehicular use of the shoulder. In the southbound direction, FBII proposed a 12-foot travel lane with a 4-foot paved shoulder, essentially the same as currently exists. That proposal was analyzed by Metric Engineering on behalf of FDOT. FDOT rejected the FBII alternative for several reasons. First, though the 10-foot northbound shoulder theoretically may be used by cars during hurricane evacuation, removal of the rumble strips would be impractical due to lack of time to do so under threat of a hurricane, and due to the costs involved. It would be unrealistic to require people to otherwise drive over the rumble strips, without removal, because they are designed to prevent such access. Using the 10-foot shoulder during an evacuation would result in there being no shoulder area to remove accident vehicles from the roadway which would otherwise threaten to restrict the flow of traffic or cease it altogether. The reduced width of the shoulder lane below the standard 12-foot lane would also decrease the flow of evacuees. FBII's proposal for a two-lane fixed-height bridge at Jewfish Creek would not completely eliminate rear-end collisions at the bridge. The two-lane alternative proposed by FBII is not a signed and sealed cross section. The proposal by FBII does not include the area necessary for a SWM system or for clear zones. FBII did not do an analysis to determine whether its proposal complies with pertinent FDOT roadway and traffic design standards or with pertinent highway safety and improvement standards. The FBII proposal does not account for removal of the Lake Surprise causeway or construction related impacts from barge traffic. FBII did not do a wetlands survey to determine the impact of its two-lane proposal. At the Final Hearing, Petitioners presented for the first time a new proposal to use "flexible diverters" to pave a third northbound lane and to block that lane from travel traffic with poles. However, no research was conducted into the feasibility of such a proposal, nor was it adequately thought out. Such a use of "flexible diverters" is unprecedented in FDOT's history, is impractical to implement, and would violate FDOT's design standards contained in its Manual on Uniform Traffic Control Devices. Petitioners also presented for the first time at the Final Hearing a proposal to add an 8 to 10 foot paved northbound shoulder which could be converted to a travel lane with traffic control cones in the event of an evacuation. This plan is also not feasible, because the resulting lanes would not be wide enough to safely accommodate evacuating traffic, and because the contradiction between existing road striping and the placement of cones would likely cause accidents, which would halt evacuation. The proposals submitted by FBII do not sufficiently improve hurricane evacuation or traffic safety and, consequently, are not acceptable alternatives to the project. FDOT can do nothing else to minimize the impacts of the project and still address the needs for the project. Minimization of wetlands impacts was accomplished to the greatest extent possible. FDOT has proposed mitigation to offset the impacts that could not be avoided. THE PROPOSED PROJECT - IN GENERAL STIPULATION AS TO DESIGN AND CONSTRUCTION Petitioners stipulated that the design and construction specifications of the roadway proposed to be permitted in this case comply with all applicable design and construction standards for structural integrity, and adequately describe the three-lane divided roadway proposed to be constructed on a four-lane roadbed/embankment. PROPOSED LANES, SHOULDERS, AND MEDIAN FDOT proposes to widen the roadway in the project area to a three lane divided roadway with two northbound lanes and one southbound lane, plus three passing zones. The proposed project will be constructed on a four lane roadbed embankment. FDOT does not presently have plans to add the fourth lane to this roadway. FDOT Exhibit 8 contains an accurate description of the proposed typical section of the roadway. The typical section will consist of two twelve-foot northbound lanes with a six-foot paved shoulder and a four foot stabilized area adjacent to the paved shoulder; a twenty-foot median consisting of a two-foot paved shoulder, sixteen feet of grass and a tri-beam guardrail in the middle as a separator; and one twelve-foot southbound lane with an eight-foot paved shoulder. The proposed typical section also includes a storm water management system that will be described in more detail below. The proposed typical section includes a clear zone thirty feet in width, which is adequate. THE THREE PASSING ZONES The existing passing zone located in Dade County between mile markers 113 and 115 is one mile in length. FDOT proposes to alter this passing zone to 1.44 miles in length. The existing passing zone located in Dade County between mile markers 120 and 122 is also one mile in length. FDOT proposes to alter this passing zone to 2 miles in length. In addition, FDOT proposes to construct a 1.5 mile long passing zone between mile markers 110 and 112 in Monroe County. If permitted, the proposed project will include 2 passing zones in Dade County and 1 passing zone in Monroe County, for a total of 3 passing zones. The total length of the passing zones will equal 4.94 miles. ELEVATION There are no plans to change the elevation of the existing roadway. HYDROLOGIC CULVERTS The project contemplates the construction of 25 hydrologic culverts north of the C-111 Canal. These culverts will remain capped until further hydrological studies are completed and input from all concerned regulatory agencies can be obtained. It has not yet been determined how these culverts will be utilized to maximize the improvement to the ecosystem north of the C-111 Canal. WILDLIFE CROSSINGS INCLUDING THE C-111 BRIDGE The project contemplates the construction of three wildlife crossings north of the C-111 Canal in Dade County with fencing designed to funnel wildlife through the crossing. These crossing, sometimes referred to in the record as “panther crossings” are located between mile markers 118-119, 122-123, and 126-127 and will be constructed as overland bridges. In addition, the replacement bridge over the C-111 Canal (located between mile markers 116-117 in Dade County) is intended to serve as a wildlife crossing and will also employ fencing to funnel wildlife through the crossing. All four of these structures will be constructed as four-lane bridges, but will be striped for three lanes with rumble strips on the southbound fourth lane to discourage vehicular traffic in that lane. There will be an eight foot outside shoulder. FDOT proposes to construct 18 culverts south of the C-111 Canal for crossings by crocodiles, alligators, manatees, and other wildlife. These crossings will consist of 15 box culverts and 3 bridges. MANATEE CREEK BRIDGE The proposed bridge at Manatee Creek would be constructed as a four lane bridge, but would be striped for three lanes with rumble strips on the southbound fourth lane to discourage vehicular travel in that lane. There would be an eight foot outside shoulder. BRIDGING JEWFISH CREEK AND LAKE SURPRISE Jewfish Creek, which is part of the Intracoastal Waterway, and Lake Surprise would be bridged by a continuous structure. The Jewfish Creek bascule bridge would be replaced by a high-level four-lane fixed bridge. The Lake Surprise causeway would be replaced by a low-level four-lane bridge. The total distance for this bridging is approximately 2.35 miles. AREA OF PROJECT THAT WILL BE OPERATED WITH FOUR-LANES The three passing lanes (4.94 miles) and the bridge over Jewfish Creek and Lake Surprise (2.35 miles) would be operated with four lanes. Those areas total 7.29 miles of the 20.4 mile project corridor. Approximately 43 percent of the proposed roadway would have four lanes of pavement. Excluding the areas where the fourth lane will be blocked from travel with rumble strips, only 35 percent of the completed project will contain four travel lanes. This area consists of the three passing zones and the bridges over Jewfish Creek and Lake Surprise. THE PROPOSED SWM SYSTEM The proposed project would provide for a SWM system consisting of inlets, culverts, swales, berms and dry/wet retention areas. For the typical roadway section, runoff from the paved roadway surfaces will be directed to roadside swales designed to provide retention for 50 percent of 2.5 inches times the impervious area. The SWM system for the bridges will collect runoff in inlets and culverts and direct it to either swales or dry or wet retention ponds. The berms of the SWM system provide additional protection by restricting spills of pollutants, such as petroleum from overturned tankers or other vehicle accidents, from running into the surrounding waters. The berms and swales of the SWM are designed to catch pollutants and prevent their discharge into the surrounding waters. FDOT Exhibit 18 consists of four separate drainage reports submitted to the District in 1995 in connection with the project, one report for each section of the project. The reports accurately document the drainage calculations, the drainage design, the rationale behind the drainage design, and compliance of the design with the laws and regulations of the permitting agencies for the original four-lane proposal. On or about September 5, 1995, FDOT submitted revised drainage calculations to the District, determining the amount of stormwater treatment for the three-lane project. The revised calculations established that at least 95% percent of all stormwater runoff from the project would be captured in the proposed SWM system. Because the swale design was based on the originally proposed four-lane road, retention will be in excess of the required volume for most sections of the roadway. The required retention volume for this project is approximately 166 percent of what is required by the BOR. The surface and subsurface geology of the roadway consists of Miami oolite limestone overlain with Perrine maral. Underlying this is Thompson formation, anastasia and Key Largo limestone. Based on these constituencies, the swales proposed by the SWM system would be effective in rapidly removing heavy metals and phosphorous. The revised calculations established that approximately five percent of the project area will not have a SWM system. These areas will not have a SWM system because properly-sized retention systems in those areas can not be constructed without causing a disproportionate, adverse impact to surrounding wetlands. FDOT has provided reasonable assurances that the proposed SWM system’s total water quality treatment exceeds the District's permitting requirements and provides sufficient treatment to exceed the BOR requirements. The water discharged from the proposed system would be of higher quality than that currently discharged, which is not treated. FDOT has provided reasonable assurances that the proposed SWM system complies with the permitting criteria found in Rule 40E.301(1)(a)-(p), Florida Administrative Code. The following findings are made as to that criteria. Rule 40E-4.301(1)(a), F.A.C. The parties stipulated that Rule 40E-4.301(1)(a), F.A.C., pertaining to flood protection and the adequacy of drainage, is not at issue in this proceeding. Rule 40E-4.301(1)(b), F.A.C. The quality of water being discharged from the SWM system will be of substantially higher quality than the existing discharges. Consequently, it is concluded that the system will not cause adverse water quality impacts within the meaning of Rule 40E-4.301(1)(b), F.A.C. In addition, the evidence established that there will likely be less water discharged from the roadway if the project is constructed because of the amounts of water that will likely be retained in the swales that are a part of the SWM systems. Rule 40E-4.301(1)(c), F.A.C. Because the receiving bodies of water are designated Outstanding Florida Waters, the District is required to apply the DEP's most stringent water quality requirements -- the antidegredation requirements for discharge to OFWs, to this project. Those standards will be discussed in more detail below. The evidence established that the proposed project will not violate those requirements. Rule 40E-4.301(1)(d), F.A.C. Impacts to sources of water are not at issue. The District reviewed the potential effect of the SWM system upon on-site and off-site impacts to surface or groundwater levels and flows. The evidence supports the District's conclusion that no adverse impacts will be caused. Petitioners failed to present any evidence on groundwater levels and flows. Consequently, it is found that the criteria found at Rule 40E-4.301(1)(d), F.A.C., has been satisfied. The 25 hydrologic culverts north of C-111 have the potential to re-establish historic surface water flow in the area. They were sized, based on rainstorm events, to help equalize water levels from one side of the road to the other. The culverts are capable of transferring water from west to east to assist in the historic restoration of flows. In order to assure the proper usage of the culverts, they will remain gated until the District develops a management plan in conjunction with other agencies. The District will determine the maintenance entity. The FKAA water main runs beneath this section of the road. As a result, there is no other more hydrologically efficient alternative for the placement of the culverts. The culverts would also provide a means for overwash from storm events, over the U.S. 1 roadbed, to flow back to its point of origin, stabilizing the roadbed and allowing release of the accumulated salt water. Rule 40E-4.301(1)(e), F.A.C. In addition to providing for a net improvement in water quality, the project will offset any adverse impacts through mitigation and other environmental enhancements for which no mitigation credits are being assigned, as described below. Rule 40E-4.301(1)(f), F.A.C. FDOT has a history of adequate maintenance of SWM systems, and has provided reasonable assurance that it has the staff and budget to comply with District operation and maintenance requirements. FDOT will also be able to comply with the District's requirements to control exotic plants and other foliage along project corridor. Rule 40E-4.301(1)(g), F.A.C. The SWM system will not adversely affect public health and safety. The dispute as to the public interest test focused more on the WRM permitting requirements. Findings as to the public interest test are discussed in more detail below. Rule 40E-4.301(1)(h), F.A.C. The evidence established that the SFM system is consistent with State Water Policy. Rule 40E-4.301(1)(i), F.A.C. This project does not pertain to a DRI and, consequently, this criteria is not applicable. Rule 40E-4.301(1)(j), F.A.C. There are no basin criteria applicable to this project. Rule 40E-4.301(1)(k), F.A.C. The evidence established that the SWM system will not be harmful to the water resources of the District. While there will be adverse environmental impacts caused by the project, those adverse impacts have, as will be discussed in more detail below, adequately offset by mitigation. Rule 40E-4.301(1)(l), F.A.C. This issue was not at issue in this proceeding. Rule 40E-4.301(1)(m), F.A.C. As will be discussed in greater detail in a subsequent section of this Recommended Order, the project is not against public policy. For the reasons set forth in that subsequent section, it is found that the project is clearly in the public interest. Rule 40E-4.301(1)(n), F.A.C. Rule 40E-4.091(1)(a), F.A.C., constitutes the BOR. As discussed in detail above, the SWM system complies with the BOR. Rule 40E-4.301(1)(o), F.A.C. There are no isolated wetlands pertaining to this project. Rule 40E-4.301(1)(p), F.A.C. There are no above ground impoundments, as described in Appendix 6 of the BOR, pertaining to this project. WATER QUALITY - DISCHARGES INTO OFW Because the project will involve discharges into Outstanding Florida Waters, it was necessary for FDOT to establish that the discharges from the SFW system will not degrade those OFWs. The evidence established that FDOT's proposed project complies with and exceeds applicable water quality standards and permitting criteria. There will be no significant degradation of ambient water quality as a result of the project. It is expected that there will be a net improvement in ambient water quality resulting from the proposed project, as opposed to the continued degradation if nothing is done to treat stormwater runoff. In FDOT Exhibit 46, FDOT provided baseline water quality data in the form of STORET data for waters adjacent to the project area. STORET is a centralized repository and database for water quality data throughout Florida. It is Florida's principal source of water quality data. STORET contains the best scientific database on water quality in Florida. The STORET data set forth in FDOT Exhibit 46 provided sufficient evidence on ambient water quality for the waters adjacent to the proposed project. In addition to providing the water quality data in FDOT Exhibit 46, FDOT is required by Special Permit Condition 37 to submit appropriate water quality data in the surrounding waters prior to any construction activities. SFWMD Exhibits 5 and 6 contain amendments to Proposed Agency Action made after the beginning of the formal hearing. These amendments include a requirement that an appropriate water quality monitoring plan be submitted within 30 days of the permit issuance. FDOT has provided reasonable assurances that water quality standards will be met and that there will be appropriate water quality monitoring during construction. DIRECT IMPACTS OF THE PROJECT The proposed roadway design will result in the following direct impacts to wetlands adjacent to the roadway corridor: 1) the dredging of 11,028 cubic yards of material from 2.1 acres, 2) the placement of 1,689,553 cubic yards over 147.0 acres of wetlands, and 3) 6.9 acres of (potential) permanent impact due to shading and 4.1 acres (potential) of temporary impacts from the Jewfish Creek Bridge construction activities to seagrass habitat. In order to determine the project's direct impacts, the area surrounding the project was surveyed to determine the number of affected acres. This was done by using a computer aided design ("CAD") system, and by categorizing the various forms of wetlands and associated flora and fauna into the following communities: mangrove, emergent freshwater, open water, and tidal, consisting of seagrass and non-vegetated bottoms. Using these categories and the CAD system, every square foot of direct impacts were accounted for. The adverse direct wetland and surface water impacts of this project are as follows: 1) 27.83 acres Non- Vegetated Tidal Bottom; 2) 11.27 acres Seagrasses; 3) 46.85 acres Mangroves; 4) 42.35 acres Sawgrass/Cattail/Spikerush; 5) 14.31 acres Shrub Wetlands; and 6) 6.46 acres Open Fresh Water; totaling 149.07 acres. Though some wetlands to be impacted may be of lesser quality, FDOT stipulated that all wetlands to be directly impacted by the project should be considered to be high quality wetlands for the purpose of mitigating the impacts. The impacted wetlands are part of larger wetland systems. Petitioners assert that the District should have required studies as to impacts as to the larger wetland systems. The evidence established that the District appropriately considered the type and location of the wetlands involved so that additional study suggested by Petitioners was unnecessary. Petitioners also assert that impacts to isolated wetlands should have been studied. The evidence established that there will be no such impacts. SECONDARY AND CUMULATIVE IMPACTS RECOGNIZED BY SFWMD In addition to the direct impacts of the project, the District is required to analyze secondary and cumulative impacts. A project's secondary impacts are those that, though outside of the project footprint, are very closely linked and causally related to the project. This is a "but for" test. Secondary impacts are those impacts which, if not for the proposed project, would not occur. Both positive and negative secondary impacts are considered. When there are both positive and negative secondary impacts caused by a project, the permitting agency must consider the severity of the impacts and balance these together with the other factors in the public interest test to determine whether or not the project is clearly in the public interest. WRM statutes, and DEP rules and policies pertaining to those statutes do not regulate growth or traffic increases, per se. Only if such increases are very closely linked and causally related to the project will they be considered. The District identified several secondary impacts that would be temporary in nature since they would occur while the project is being constructed. One is the use of a barge facility, primarily at Jewfish Creek, where the anchoring of the barge may result in temporary impacts to seagrass during construction. This impact is addressed by a component of the seagrass mitigation at Boca Chica, discussed below. Another impact is turbidity associated with the dredge and fill and the barge activities. That issue is appropriately addressed by permit conditions, through the use of turbidity control screens and other techniques. The District also identified secondary impacts directly associated with the project footprint that would be permanent in nature. The removal of the exotic vegetation potentially opens up the areas adjacent to the road north of the C-111 canal to off-road vehicles or four-wheel driving and the potential impacts caused by those vehicles. That impact is appropriately addressed by fencing north of the C-111 canal. When a road is widened, animals have a greater distance to travel back and forth from one side of the road to the other. A wider road exposes such animals to greater risk of being hit by a motor vehicle while crossing the road. That impact is addressed in this project by the fencing, the wildlife crossings, and the wildlife box culverts. The crossings are designed for large mammals and some species, such as the Indigo snake, will likely not use these crossings. The wildlife crossings will not entirely mimic the crossing patterns of all wildlife that need to cross U.S. 1 and will result in some wildlife habitat fragmentation. The fencing that will be erected to funnel wildlife through the crossings will fragment the habitat of some species by altering wildlife crossing patterns and blocking access of some species to certain areas of habitat. The greater weight of the evidence established that any habitat fragmentation should, when compared to existing conditions, be minimal. The District appropriately evaluated the advantages and disadvantages of using wildlife crossing and hydrological culverts and appropriately concluded that there would be a net benefit to wildlife as a result of their construction. The District properly concluded that the culverts, bridges and fencing located south of the C-111 canal, construction of wildlife crossings and fencing north of the C- 111 canal, construction of the hydrologic culverts, and removal of the Lake Surprise Causeway are positive secondary benefits of the project. These benefits should be considered when applying the public interest test. THE FKAA PIPELINE RELOCATION The project requires the relocation of two segments of the existing pipe owned by the Florida Keys Aqueduct Authority (FKAA) around Jewfish Creek Bridge. The segments total approximately 1.5 miles. The District inspected the area where the pipeline will be relocated to assist in determining its impact. The pipeline relocation is a temporary disturbance during construction. It is a small linear facility, which will not generate pollution in and of itself. The pipeline relocation is not expected to result in a violation of State water quality standards. The FKAA is responsible for obtaining the necessary permits for the relocation. Direct impacts to wetlands will occur in a 4 to 5 foot wide strip along the length of the relocated aqueduct. The FKAA has submitted a permit application to the DEP for a permit to relocate the aqueduct. DEP believes that adequate mitigation can be achieved to make the project permittable. Once the FKAA submits an adequate mitigation plan, then relocation of the aqueduct will not be an adverse secondary impact caused by the U.S. 1 project. The permit for the subject project should contain a condition that the FKAA obtain a permit for the relocation of these two segments of its pipeline. THE C-111 BOAT RAMP There is an existing boat ramp designed for small boats to access District canals that is located on the north side of the C-111 canal. As a result of the proposed project, it will be relocated to the southern side of the project. This relocation is a relatively minor project requiring a cut in the canal bank and a fourteen-foot wide slab for the boat ramp. When the District considered the potential impacts associated with this relocation in conjunction with the impact of the proposed project, it was determined to be a relatively insignificant impact in terms of the project as a whole. Relocation of the boat ramp is not expected to result in a violation of state water quality standards. All direct, cumulative, and secondary impacts, whether positive or negative, should be considered in balancing the public interest test. ARE THERE ADDITIONAL SECONDARY AND CUMULATIVE IMPACTS Petitioners assert that there are additional cumulative and secondary impacts that the District failed to consider. Petitioners argue that the project cannot meet permitting criteria if those additional impacts are considered. The additional impacts pertain to additional development throughout Monroe County because of the “rate of growth ordinance” (ROGO), additional development along the project corridor, impacts to the coral reefs of the Keys, impacts to Key Deer, generalized impacts, and impacts from increased number of “day trippers." For the reasons discussed below, it is found that the District has considered all appropriate direct, secondary, and cumulative impacts of the project. The additional impacts that Petitioners assert should have been considered are not causally connected or directly linked to the project. THE RATE OF GROWTH ORDINANCE Monroe County adopted its Year 2010 Comprehensive Plan (the "Plan") to meet the requirements of Chapter 163, F.S. The Plan, adopted May 15, 1993, is unusual in that the County limits future growth based on a carrying capacity analysis of its hurricane evacuation clearance time. No other jurisdiction in Florida, and few others in the United States, have used a carrying capacity planning approach. To implement the carrying capacity limitation, Monroe County determined the total number of dwelling units that could be permitted while maintaining an acceptable hurricane evacuation clearance time of 24 hours. This number of dwelling units, less an allowance for vested development and development in municipalities, was the basis for a ROGO that was adopted by the County in 1992. The ROGO allocates the available units at a uniform annual rate of growth (currently, 255 units per year). The ROGO regulates all proposed new residential buildings, including hotels, motels, and other transient tourist accommodations as well as permanent residences. The number of building permits that Monroe County can issue is, at present, directly related to how rapidly the County can be evacuated in the event of a hurricane. The lower the clearance time, the greater the number of permits that can be issued. The Comprehensive Plan requires that the County be able to evacuate within a 24-hour period. As of March 7, 1995, the hurricane evacuation time for Monroe County was determined to be 21.25 hours.1 The project is expected to reduce by six or seven hours the modeled hurricane evacuation capacity for Monroe County, regardless of whether it consists of three or four lanes. This is because both the three lane and four lane plans provide for two northbound lanes. Because of the rate of growth provisions in county law, this reduction of clearance times results directly in an increase in the number of building permits that the county can issue annually. Under ROGO, Monroe County can, with this project, issue 255 permits each year through the year 2026. Without this project, Monroe County can issue 255 permits each year only through the year 2001. Alternatively, without this project, the county can issue 88 permits each year through the year 2010 if it chooses to issue permits over a longer period of time. Following extensive litigation before the Division of Administrative Hearings in an unrelated proceeding2, the Administration Commission entered a final order on December 12, 1995, that approved approximately 97 percent of the Plan. In addition, the Administration Commission has published a proposed rule to bring the remainder of the Plan into compliance and assure its financial feasibility. The central feature of the proposed rule is a five- year work program, with annual reviews by the Administration Commission. It is likely that the proposed rule will eventually result in the complete revision of the ROGO. The proposed rule provides that Monroe County's annual rate of growth be revised within five years, no later than December 31, 2001, "to establish a rate of growth and a set of development standards that ensure that any and all new development does not exceed the capacity of the county's environment and marine systems." A carrying capacity study will comprehensively assess water quality, habitat protection, and public facility issues to determine the capacity of the Keys to sustain further development. The proposed project is but one of many factors that will be considered in future rate of growth regulations. If the expected revisions occur, it would be speculative to predict what development would be allowed. While the studies are underway the rate of growth will remain at 255 units per year. The rate of growth will be reviewed annually, and may be reduced a minimum of 20% if the goals of the studies are not being met. The DCA has determined that Monroe County’s Comprehensive Plan and its land development regulations are sufficient to prevent or mitigate any potential adverse secondary impacts of the project caused by development. The DCA has consistently supported the proposed project, even in its earlier four-lane configuration, because it was consistent with Monroe County's 1986 Comprehensive Plan, and because the project would improve hurricane evacuation clearance times and improve water quality in the vicinity of the roadway. The 1986 plan supported widening of the roadway to four lanes based on projected travel demand. The DCA prefers the current, three-lane proposal to the earlier four-lane. On September 7, 1995, the Monroe County Commission adopted Resolution 315-1995 in support of the proposed project because "it balances the needs for a widened highway with safeguards designed to address secondary impacts." Lorenzo Aghemo, an expert in comprehensive planning, served as Monroe County Planning Director during the development of the Plan and ROGO. In Mr. Aghemo's opinion, the widening of the roadway to either three or four lanes would generate minimal growth pressure in Monroe County, particularly because the Plan limits the rate of growth. Because the Keys are designated by Section 380.0552, F.S., as an area of critical state concern, the DCA is charged with oversight of Monroe County's Comprehensive Plan, its LDRs, and all development that takes place in Monroe County. Additionally, the Administration Commission may amend Monroe County's plan or regulations by rule (See Section 380.0552(9), F.S.). There is virtually no action that Monroe County can take related to the use of land without review and approval of a state agency. The Administration Commission’s proposed rule demonstrates its intent to revise comprehensively Monroe County's ROGO within five years to ensure that future development does not exceed the capacity of the Keys' environmental resources. It also demonstrates the Administration Commission's intention to closely monitor growth and development in the Keys during the five-year study period. Some of the studies required by the proposed rule are already underway: 1) the DCA has entered into a contract with the ACOE to complete the environmental carrying capacity study; 2) the HRS study of advanced on-site waste water treatment systems is underway; 3) Monroe County is developing the required Marathon central sewer facilities plan; and 4) Monroe County and HRS have begun the cesspit identification and elimination process. Caution should be exercised in relying on this or on any other proposed rule. Likewise, caution should be exercised in relying on changes to ROGO that may or may not occur. It is likely that the present status of the law will be changed in the near future so that future development will be based on environmental carrying capacity as opposed to hurricane evacuation clearance times. However, for the purposes of this proceeding the District should accept the fact that the issuance of future building permits is closely linked and causally related to the project. Consequently, it is found that under the present status of the law, the issuance of additional building permits in Monroe County is closely linked or causally related to the project. MONROE COUNTY LDRS AND DCA OVERSIGHT Although Petitioners established that there is a causal relation between the project and the existing status of the law governing the number of building permits that can issued in the future, the evidence was insufficient to establish at a level above speculation that adverse environmental impacts will result because of the issuance of those building permits. The Monroe County Comprehensive Plan contains land development regulations that govern all development in Monroe County. These regulations are among the most stringent in the State and are designed to avoid or minimize adverse environmental impacts caused by development. All development orders in Monroe County are closely scrutinized by the Department of Community Affairs to ensure compliance with applicable permitting criteria. Those regulations and the DCA’s close scrutiny are intervening factors that break any causal relation between the project and the speculative adverse environmental impacts that the Petitioners assert will be caused by future issuance of building permits by Monroe County. Petitioners failed to establish that the impacts of future development are very closely linked or causally related to the project. Consequently, it is found that such impacts are not secondary or cumulative impacts of the project. DEVELOPMENT ALONG THE PROJECT CORRIDOR A major portion of the area next to the road has little or no development potential because it is either water, land in public ownership, or land slated for public ownership. The areas east of the road are mostly in private ownership, but are primarily submerged lands and mangrove areas. The Crocodile Lakes National Wildlife Refuge is federally owned and is managed by the U.S. Fish and Wildlife Service (USFWS). The Southern Glades lands, located immediately west of the project and Everglades National Park (ENP) in Dade County, have been acquired by the District and are managed by the Florida Game and Freshwater fish Commission (FGFWFC). The Model Lands Basin in Dade County is in private ownership but proposed for public acquisition in the future. The land adjoining the roadway in Dade County is designated as open area or environmentally sensitive. Almost half of the land along Monroe County's portion of the roadway is in public ownership. At least 90% of the land in private ownership is mangroves or wetlands that cannot be developed. The small area of uplands is currently being used by a resort marina which will not be allowed to develop further under the new comprehensive plan. There is very little potential for future development in the project area. The comprehensive plan designation for areas in Dade County are open space, and the ones in Monroe County have the conservation designation. The District's regulatory programs consider areas adjacent to the project as sensitive wetland habitats. Based on the District's regulatory authority and comprehensive plan designation for those lands, which would have to be obtained prior to obtaining a permit for development, it is very unlikely that those lands could be developed. Florida Rock and Sand Co. (FRS) has a permit to mine approximately 1,100 acres of wetlands. As part of its mitigation program, FRS will donate this land to the District once its mining and mitigation projects are complete. The FRS mitigation lands are preserved as a permit condition and will ultimately be transferred to the District. This land will not be developed. In addition, the District established that the U.S. 1 project and the FRS project do not constitute a cumulative impact that the District failed to consider. The evidence established that development along the project corridor will not be a secondary or cumulative impact of the project. IMPACTS ON CORAL REEF SYSTEM The evidence was insufficient to establish a close link or causal connection between the project and the coral reef system. As reflected elsewhere, it is found that there will be no degradation of ambient water quality as a result of the project. Therefore, there is no need to resolve the conflicting testimony as to the present status of the coral reef system. IMPACT ON KEY DEER There are no key deer in the project area. The nearest key deer habitat, Big Pine Key, is approximately 70 miles from the southern terminus of the project. The evidence is insufficient to establish that there is a very closely linked and causally related connection between the project and key deer mortality on Big Pine Key. GENERALIZED IMPACTS The Petitioners presented certain opinion testimony that the Keys cannot be developed in an environmentally sensitive manner because of potential adverse impacts of new development in Monroe County, or new boats operating in the waters of the Florida Keys. The credibility of that testimony need not be evaluated because the evidence was not sufficient to tie those generalized concerns into the specific regulatory criteria of the permitting agency. There was insufficient evidence to establish that those alleged impacts would be very closely linked or causally related to the proposed project. DAY TRIPPERS Induced demand is new travel that occurs solely because additional capacity is added to a highway. Petitioners' transportation experts, Michael Replogle and Robert Morris, testified that FDOT's traffic studies, and FDOT's projected rate of traffic growth of approximately 3 percent annually, are incorrect because the studies do not predict the amount of "induced demand" that would result from the proposed project. Petitioners assert that induced demand would generate an unknown number of people who drive to the Keys for the day from south Dade County, referred to as “day trippers,” will have an impact on the Keys that has not been evaluated. The assertion that this potential impact has not been analyzed is rejected as being contrary to the greater weight of the evidence. Induced demand is accounted for in Monroe County's Long Range Transportation Plan, which was never evaluated by Mr. Replogle or Mr. Morris. The Long Range Transportation Plan was prepared by an experienced traffic engineering consulting firm, Barton-Aschman, using an FDOT- approved traffic demand model, the FSUTMS model, that includes all traffic generators and attractors, and all travel on U.S. 1 on weekdays and weekends. The FSUTMS model does not restrict demand based on the existing road capacity. The model uses an "unrestrained assignment" that incorporates the total predicted trip generation on recreational facilities, hotels, and all other attractors. The Long Range Traffic Plan was used to develop the Monroe County Comprehensive Plan, which takes into consideration the projected increases in traffic and makes appropriate provisions for those increases. FDOT has provided reasonable assurances that it has properly projected the amount of traffic for the project corridor after the project is completed and that the projected increases have been appropriately addressed by Monroe County's Comprehensive Plan. MITIGATION - IN GENERAL For the reasons discussed above, it is found that there are no secondary or cumulative impacts that the District failed to consider. Petitioners also contend that the mitigation proposal is insufficient to offset the direct and secondary impacts recognized by the District. This is a large dredge and fill project that will permanently fill 149 acres of wetlands. The wetlands that will be adversely impacted by the project include OFWs that provide a great variety of functions and serve as habitat for fish and wildlife, including threatened and endangered species. The wetlands are unique and of high quality. Mitigation for direct, secondary and cumulative impacts was considered as part of the permit evaluation. In- kind mitigation is considered to be most effective, but out- of-kind mitigation may be offered by the applicant where it is impractical to conduct in-kind mitigation due to historic changes in the project area or sensitivity of the habitat type for which mitigation is offered. Such mitigation is also appropriate to address regional alteration of an ecosystem, such as the Everglades ecosystem alteration caused by the original roadway embankment. FDOT developed a conceptual mitigation plan that took into account project impacts on the freshwater, marine and estuarine components of the ecosystems involved, as well as the impacts on threatened and endangered species of wildlife which may be affected by the project. FDOT coordinated the plan's development with the National Parks Service, U.S. Fish and Wildlife Service, the Army Corps of Engineers, the National Marine Fisheries Service, the U.S. Environmental Protection Agency, the Dade County Department of Environmental Resources Management, the Florida Game and Fresh Water Fish Commission, and the Florida Department of Environmental Protection. The conceptual mitigation plan evolved as a result of project modifications and agency comments into what is now proposed as mitigation for the project. The current proposal is summarized in FDOT Exhibit 26, consisting of Attachment H to FDOT's SWM and WRM permit applications. The timing of their construction falls into two general categories: mitigation previously permitted and concurrent mitigation. UPFRONT MITIGATION Typically, mitigation is done concurrently with project construction rather than prior to permit issuance. Mitigation is often done afterwards because of construction timing constraints. Here, FDOT applied for and, in May 1994 received, permits to conduct mitigation prior to applying for the permits at issue, with the understanding that performance of these activities does not require the District to issue permits for the proposed projects. A total of 385.22 acres of mitigation has already been completed. The applicant received 203.02 mitigation credits from the District on May 12, 1994, for several mitigation projects that the applicant proposes to apply to the proposed U.S. 1 widening project provided it is approved. Table 2 of Attachment H to FDOT Exhibit 26 sets forth the four mitigation projects that constitutes the up- front portion of the mitigation for the project. This table sets forth the acres mitigated, the conversion factor for the mitigation, and the resulting mitigation credit awarded. The four mitigation activities already authorized are: enhancement of the wetland habitat in the Harrison Tract located adjacent to Barnes Sound within the Crocodile Lakes National Wildlife Refuge on the north end of Key Largo (70.37 acres credit for 252.6 acres of restoration); removal of the spoil mounds on the eastern bank of the C-111 canal east of U.S. 1 located on the District’s ROW (10.65 acres credit); the back filling of the C-109 canal levee located on the District ROW within the Southern Glades Save Our River project (112.7 acres credit); and the removal of the roadside spoil mounds on the west side of U.S. 1 located between C-111 and the Dade Work Camp Road within the District’s Southern Glades Save Our Rivers Project (9.30 acres credit). The mitigation projects pertaining to the roadside spoil removal along U.S. 1, the backfill of the C-109 Canal, and the removal of spoil along the C-111 Canal are similar projects because they each involve existing deep ditches cut through wetlands. When these deep ditches were cut, the spoil material from the ditch was deposited alongside the ditch. This resulted in areas that were previously Everglades wetlands becoming spoil, supporting the growth of exotic species and, for the most part, not exhibiting wetland functions. FDOT is proceeding with the backfilling the C-109 canal located between mile markers 122.5 and 117, and removal of the corresponding spoil mounds created during construction of the C-109 canal. In connection with this mitigation, marsh areas, tree islands and deep water aquatic refugia have been restored. In this area, there has been considerable attraction of wildlife subsequent to restoration, including otters, alligators, and turtles, which could not previously use the habitat because the canal was too deep. Upon completion waterflow between the east and the west will be restored, and the area will be restored to a wetland habitat from its current uplands habitat type. Backfilling of the C-109 canal is part of an interagency effort with the ACOE to restore as closely as possible to natural conditions the flow of water in the C-111 watershed area. C-111 mitigation includes removal of roadside spoil along the C-111 canal to restore the natural condition of the area. The mitigation was devised in coordination with the National Maine Fisheries Service (NMFS), which required mitigation for non-vegetated habitat types. Restoration also includes preserving some spoil areas as islands to maintain habitat for endangered species of plants. When the C-111 spoil mounds are scraped down, the fill will not fill the whole ditch. The ditch will, therefore, be a bit more valuable but will not be completely restored to its former elevation. FDOT will also remove roadside spoil along the west side of U.S. 1, upon which exotic species of plants had grown, and returning the area to its original grade. The Harrison Tract is a known habitat and nesting area for American crocodiles. Its wetlands functions were altered or eliminated by prior development of the land by its original owners. Restoration includes regrading the area to restore its original wetlands functions, including habitat for young and adult crocodiles. FDOT's mitigation of the Harrison Tract also includes restoration of tidal flushing to increase contributions of nutrients and food sources to the surrounding tidal bay system. Crocodiles have been observed using the restored areas. FDOT has installed additional nesting berm habitat, basking habitat and shallow lagoon habitat to promote juvenile crocodile development. The District established that the credit awarded for this mitigation and the conversion ratios utilized for determining this credit were consistent with agency practice and its pertinent rules. FDOT was given a 1:1 credit ratio for areas involving full restoration of wetlands. In other portions of the Harrison Tract mitigation involving restoration of flushing to existing wetlands, FDOT was given not full credit, but credit based on the severity of limitation of the existing wetland functions. Based on this evaluation, mitigation credits were given in a range of a 3:1 ratio for restoration of severely disrupted or non-existent wetlands to a 20:1 ration for restoration of higher quality but not fully functional wetlands. FDOT is being awarded 70 mitigation credits for the 252 acres in the Harrison Tract that are being restored or enhanced. CONCURRENT MITIGATION Based on the mitigation ratios developed by the District, additional mitigation credits were required. Consequently, the project contemplates mitigation that will be undertaken concurrently with the construction of the project in addition to the upfront mitigation. FDOT proposes to earn these additional credits by projects involving creation and/or restoration of emergent vegetation, mangrove and seagrass habitats. FDOT’s proposal to mitigate mangrove impacts with "out of kind" mitigation of emergent vegetation habitats was viewed by the District as being necessary and appropriate because there were no sufficiently large areas of mangrove habitat suitable for restoration. Table 7 of Attachment H to FDOT Exhibit 26 sets forth the four mitigation projects that constitutes the concurrent portion of the mitigation for the project. This table sets forth the acres mitigated, the conversion factor for the mitigation, and the resulting mitigation credit awarded. In addition, the table references certain credit for the placement of the hydrological culverts. As will be discussed later, that credit was withdrawn at the formal hearing. The four mitigation activities that will constitute the concurrent portion of the mitigation plan are: the removal of the Lake Surprise causeway (2.90 acres credit); the scrape down of the Jewfish Bridge approaches (0.67 acres credit); the restoration of the FGFWFC road (10.34 acres credit); and the Boca Chica project (27.17 acres credit) The Lake Surprise Causeway removal mitigation involves 5.26 acres of on-site seagrass restoration and 0.54 acres of unvegetated bottom mitigation through the excavation of 52,220 cubic yards of material. Lake Surprise historically was a shallow tidal lake supporting seagrasses before a causeway was built across the lake over the seagrasses. FDOT proposes to remove the causeway and restore the previous elevation, after which it is anticipated that seagrasses that grow on the east side of the causeway will fully recruit naturally to the excavated area. Removing the Lake Surprise Causeway will establish 5.26 acres of seagrass, for which FDOT received 2.63 acres of on-site mitigation credit based on a 2:1 ratio. Through natural recruitment after removal of the causeway, there is a high likelihood that the entire 5.26 acres will recolonize with seagrass. FDOT minimized the seagrass impacts to the greatest extent possible. The mitigation credit pertaining to Lake Surprise does not include credit for the removal of the causeway itself. This awarded credit is for the restoration of seagrass areas. The mitigation pertaining to the Jewfish Creek Bridge approaches proposes the scrape down of 1.33 acres of existing fill to allow the area to become recolonized with mangroves. Boca Chica is located in southern Monroe County over one hundred miles from the southern terminus of the project. This site was chosen by FDOT as a site for seagrass mitigation project after FDOT reviewed several other potential sites. Two other sites were rejected. The area around the C- 111 canal was rejected because the land proposed for use was in private ownership. Several defunct marinas in Port Bougainville were rejected due to poor conditions not conducive to seagrass growth. Boca Chica was finally chosen as the site because it was a large enough area with light and hydrological flow conditions conducive to seagrass growth. The evidence establishes that the Boca Chica site is the most viable for seagrass mitigation. The seagrasses to be impacted at Lake Surprise are healthy and productive turtle grass, manatee grass and cuban shoalgrass. Turtle grass is considered an extremely valuable “climax community” of seagrasses which hold sediments in place, cleanse water quality, and forms the base of the food chain. It is valuable to sea turtles, manatees and recreationally important fish and shellfish. The cuban shoalgrass that will colonize at Boca Chica is a pioneer colonizer species that grows in disturbed areas. It is not as valuable to the marine system as turtle grass. The Boca Chica seagrass mitigation permit condition proposed to offset impacts to 11.27 acres of seagrass. This will involve the removal of 306 cubic yards of sediment and hydraulically dredging approximately 1,175 cubic yards of spoil material. The proposed permit conditions state that FDOT shall provide future maintenance of the culvert areas to maintain adequate flushing. FDOT will plant 25.92 acres of seagrasses to mitigate for the remaining 8.64 acres of impacts, for a mitigation ratio of 3:1. In addition, 8.46 acres of seagrass will be planted to mitigate for the barren bottom area that will be affected, and 1.62 additional acres will be planted to compensate for any unexpected impacts to Boca Chica based on the necessary improvements. Overall, there will be of 36 acres of seagrass mitigation by FDOT, for which FDOT is receiving 27.17 acres credit. FDOT will also increase the water flow between the east and west lagoons of Boca Chica, and maintain the culverts connecting the two sides, in order to further promote growth of seagrass therein. FDOT is responsible for 80% survival of each acre of seagrass mitigation, as well as monitoring once a year for five years. Based on historical data obtained from Boca Chica during past mitigation efforts, there is a high likelihood that the entire 36 acres of mitigation will survive, and that the remaining 74 acres of the Boca Chica lagoons will experience natural recruitment of seagrass as a result of FDOT's efforts. The FGFWFC access area was built by excavating a ditch, and putting fill on the wetlands and creating a dirt road bed. After the C-109 canal is backfilled, the access road will no longer be needed. The mitigation project will excavate the existing road bed, back fill it into the ditch, thereby recreating the wetlands that were there previously. FDOT will receive 10.34 mitigation credits based on a 1:1 ratio of acres restored. EVALUATION OF MITIGATION There is no mitigation in this permit for any wetland impact beyond the direct loss of the specific 149 acres that will be dredged or filled. Mitigation was provided only for the direct, footprint impacts of the project. None of the up front mitigation involves the creation of wetlands, which entails converting areas that were not previously wetlands or open water and turning them into wetlands. It will likely take between 20 and 50 years for the mitigation areas to achieve full functional value required by the South Florida Water Management District mitigation permit. In the interim, there will be a net loss of wetland functional value. With time, the proposed mitigation has a high likelihood of success. Based on FDOT's past successes in mitigation of construction-related impacts, FDOT is able to comply with permit conditions relating to best management practices associated with the construction of bridges and pilings and turbidity screens around road construction, as well as restoration of seagrasses and mangroves. Petitioners assert that the District erred in determining the credit to be given for the up-front portion of the mitigation. While it is true that the SFWMD Rules do not mention "up-front" mitigation, the District has the authority to consider all aspects of a mitigation project in weighing its relative value. Consulting engineering inspectors have been retained by FDOT to insure that all permitting requirements are met during mitigation and construction, and that the technical special provisions for protection of threatened and endangered species are complied with by FDOT. The proposed permits contain appropriate conditions that require FDOT to monitor and maintain the mitigation areas. FDOT will be responsible in perpetuity for maintaining the tidal flushing connection at the Boca Chica mitigation site. Special permit condition 6 to the SWM and WRM staff reports require wetland and upland monitoring. If wetland and upland monitoring or other information demonstrate that additional adverse impacts have occurred due to this project, FDOT would be required to offset the loss of any additional wetland impacts. MITIGATION IS APPROPRIATE The evidence established that the mitigation projects were fairly and appropriately reviewed by SFWMD and that the mitigation credits were fairly and appropriately awarded. The evidence also established that there is appropriate mitigation for the direct, secondary, and cumulative impacts of this project. ACTIVITIES NOT RECEIVING MITIGATION CREDIT Mitigation credits for the 25 hydrologic culverts north of C-111 were originally included in the permit staff reports. Those mitigation credits were removed in an addendum to the staff reports, introduced as District's Exhibits 5 and 6. These credits were not necessary to offset project impacts. After the staff report was issued, they became a point of contention by the Petitioners because they will not be utilized until a management plan is developed. Since they were not necessary to meet mitigation requirements, the credits were removed from this project. These credits were never included in the mitigation ratios for these permit applications. The addendum removed the 9.6 credits initially contemplated for the culverts. No credit has been awarded for the relocation of threatened and endangered species of plants, such as Joewood and Bay Cedar by FDOT from the C-111, C-109 and roadside spoil mitigation areas. These species have been relocated to tree islands constructed by FDOT on the mitigation sites, or to other areas that would not be impacted by the project. FDOT also was not given mitigation credits for: (1) the wildlife crossings and the fencing that will funnel wildlife through these crossings; (2) installation of pipe culverts north of the C-111 canal and bridges and box culverts south of C-111; and which, in addition to providing a corridor for aquatic species, will increase the tidal flushing of the area; (3) the removal of the Lake Surprise Causeway, which will restore historical hydrological flow between the eastern and western sides of Lake Surprise; (4) FDOT's commitment to improve and maintain the flushing of the west lagoon culverts in Boca Chica (mitigation is in the east lagoon); and (5) FDOT's contribution of $300,000 to assist Monroe County in performing a carrying capacity study for the County. Additionally, FDOT will preserve the Jewfish Creek Bridge abutment, which will be preserved for local historical purposes. FDOT will prepare the Jewfish Creek Bridge pilings for an artificial reef at Long Key during construction. THE PUBLIC INTEREST TEST It is appropriate for the SWFMD to consider, in balancing the public interest test, to consider traffic safety and hurricane evacuation.3 Because of FDOT's expertise in those areas, it is appropriate for the permitting agency to give great weight to highway safety concerns, including hurricane evacuation, presented by FDOT. The application of the public interest test does not involve consideration of non-environmental factors other than those expressly set forth in the statutes such as navigation or preservation of historical or archaeological resources. Specifically, aesthetics, quality of life, the potential for a project to cause increased crime, and school overcrowding are not properly considered within any of the seven factors contained in Section 403.918(2)(a), Florida Statutes (1991). The District concluded that the project is clearly in the public interest based upon consideration and balancing of the following factors: hurricane evacuation improvements, public safety improvements, a SWM system where no SWM system currently exists; wildlife crossings and fencing north of the C-111 canal where no such crossings or fencing currently exist; wildlife box culverts to accommodate crocodiles, alligators, manatees and marine life where no such culverts currently exist; and hydrologic culverts, which have the potential to assist in the restoration of hydrologic flows, and the mitigation projects, both upfront and concurrent. SECTION 403.918(2)(a), FLORIDA STATUTES Section 403.918(2)(a), Florida Statutes, requires the permitting agency to determine “[w]hether the project will adversely affect the public health, safety, or welfare or the property of others." The property of others is not at issue. As discussed below, the evidence clearly established that the project will greatly enhance the safety of the road during normal operations and facilitate evacuation in the event of a hurricane. There will be clear benefits to the public safety as a result of this project. As part of the PD&E process, FDOT, through Metric, prepared "A Safety Evaluation" of the existing roadway. The safety analysis was based on FDOT accident statistics for the years 1983-1988, as well as engineering review of the conditions causing the accidents. Specifically, FDOT based their safety analysis on the following: 1) calculation of the abnormally high accident rate on the roadway based on the rate quality control formula set forth in the FDOT Highway Safety Improvement Guidelines, and approved by the Federal Highway Administration; 2) copies of the actual crash reports filed with the Florida Division of Highway Safety and Motor Vehicles, which provided detail greater than that generally available through FDOT's own accident data reports, and which formed the basis of the collision diagram in the Safety Evaluation (FDOT Exhibits 36; and 3) and its August 1996 update thereto (FDOT Exhibit 41), on-site evaluation and review of the roadway to determine geometrics of the roadway, locations of driveway accesses and side roadways and the degrees at which roadways intersected. Metric prepared an update of the Safety Evaluation for the years 1989-1994, to determine the continuing validity of the Safety Evaluation, as well as to review alternative proposals to the original proposed roadway configuration. In preparing the update, the recent accident data (FDOT Exhibit 37) and the underlying research in the Safety Evaluation were used by Metric Engineering in reaching its conclusions. The Safety Evaluation performed by Metric in 1989 established high accident rates on the roadway based on a detailed segmental analysis of the roadway. In August of 1996, the Safety Evaluation was updated by Metric, which update confirmed the findings of the Safety Evaluation, and further stated that accident frequency on the Monroe County portion of the roadway exceeded the state average accident rate and the abnormally high accident rate for the years 1990 through 1994 (notwithstanding the rear-end accidents occurring at Jewfish Creek). Fatal accidents on the Dade County portion exceed the state average on the same stretch by 37 percent for the same years. The most severe accidents occur on the Dade County portion. The Monroe County portion of the roadway exceeds the statewide average in the abnormally high accident rate four out of the last five years that FDOT studied. The Dade County portion does not exceed the accident frequency or the number of accidents, but the fatality rate in Dade County is much higher than the state average. Presently an abnormally high accident rate exists in three locations along the project corridor, two of which are in the vicinity of the Jewfish Creek bridge. The third location is north of the bridge on Cross Key. Replacing the Jewfish Creek Bridge with the fixed-height bridge proposed by FDOT will substantially increase the safety on the project corridor. The District considered this to be an important positive element in the public interest balancing test. The existing 2:1 slopes of the roadway make it difficult for drivers to recover from running off the roadway, resulting in a greater frequency of this type of accident. Moreover, the existing clear zone is not large enough to overcome the 2:1 slope to allow safe recovery of errant vehicles. As a result, catastrophic crashes occur rather than safe recoveries. Also, as with hurricane evacuation discussed in the following section, actual accidents on the roadway prevent traffic from accessing or leaving the Keys, and also prevent emergency vehicles from rapidly accessing the Keys and a crash site. This occurs because there is little or no shoulder or clear zone along the sides of the road to allow emergency vehicles to efficiently access an accident site, and in the event of a severe, head-on type collision, the roadway is blocked off. U.S. 1 through the project corridor is regarded as so unsafe for travel that Monroe County law enforcement officials call it "death alley." There are many head-on collisions due to the two-lane, no-median alignment. Law enforcement is difficult and dangerous along the roadway, because it has very few areas wide enough to allow law enforcement officials to detain driving violators. It is also very dangerous, for the same reasons, for a driver to pull off the roadway with a broken-down vehicle. High rates of speed and impaired drivers contribute to the accident rates along the project corridor. The efforts of law enforcement to control speeders and drunk drivers is impeded since it is practically impossible for enforcement officers to turn their vehicles around to pursue violators without running a high risk of causing an accident on their own. The project would significantly improve safety on the roadway by reversing the problems identified in the this section, as well as the previous sections of this Recommended Order. The project would virtually eliminate head-on collisions which largely contribute to serious injuries and fatalities along the roadway. The project would also help eliminate problems with emergency vehicle access to accident sites and restoration of service in the event of accidents, and would increase the roadway's level of service as discussed below. Improved level of service was an additional need considered by FDOT during the PD&E process. While the District did not consider the traffic level of service by itself to be weighted as part of the positive public interest criteria in this project, the impacts of resulting congestion are relevant to the public interest consideration of traffic safety as discussed in the foregoing sections. Lower quality level of service, as presently exists on the roadway through level of service F, adversely affects the safety of the roadway. When traffic levels rise, driver frustration increases leading to drivers passing in no-passing zones and potentially resulting in head-on collisions and high-severity accidents. Additionally, due to the narrow shoulders of the existing roadway, accident vehicles pose a threat to and impede normal traffic flow on the roadway. The Highway Capacity Manual set the standards for traffic engineering and is used in all fifty states. The manual classifies the existing roadway as a two-lane arterial rural road. Applying the standards for measuring level of service for two-lane rural roads set forth in the Highway Capacity Manual, FDOT determined that the existing level of service on the roadway is E, which is a very poor level of service that does not meet the established standard of level of service C required by the Highway Capacity Manual. Monroe County uses a speed based method of calculating level of service. Using that method, the level of service for U.S. 1 is at an acceptable level. The parties disagree as to which method of calculating the level of service is appropriate. That conflict is resolved by finding that the method used by FDOT is the appropriate method because of its wide acceptance and long-term use. Traffic volume in the area of the southern terminus of the project is growing at a rate average annual rate of 3.07 percent. In the present condition of the roadway, level of service will degrade to F, or forced-flow conditions, by the year 2006. Even with the improvements proposed by FDOT, the level of service in the northbound direction would improve to level of service B, but the level of service in the southbound direction would remain at level of service D or E due to the single southbound land configuration. Hurricanes pose a serious threat to the safety and welfare of residents and visitors of the Keys. Monroe County is the most vulnerable hurricane-prone area in the United States because it is surrounded by tropical waters, land elevation is low throughout the islands, and the evacuation routes are limited to U.S. 1, an extended route that starts in Key West and runs to the mainland, and Card Sound Road. The greatest potential for loss of life during a hurricane in the Keys is from storm surge. Storm surge is a dome of water near the center of a hurricane which is created by the winds on the water's surface. In a category 3, 4 or 5 storm, the entire land mass in the path of the storm will be inundated. Because of the wind and storm surge associated with hurricanes, the best response to a hurricane warning in the Keys is to evacuate people to the mainland away from the water and the storm surge threat. Accordingly, Monroe County orders a mandatory evacuation in a category 3, 4, or 5 hurricane, and no shelters are opened. There is little or no disagreement as to the vulnerability of the Keys to hurricanes or as to the danger posed by a hurricane. There is disagreement as to whether the proposed project is needed for improved hurricane evacuation. The conflicting evidence in this regard is resolved by the following findings, which are based on the more credible, substantial evidence. The existing road does not have sufficient hurricane evacuation capacity to meet the present and projected future needs of Monroe County residents and visitors. In current hurricane evacuations, the two northbound lanes on U.S. 1 between mile marker 90 and 106 are split at Key Largo. Sixty percent of the traffic is directed up the northbound lane of U.S. 1; forty percent of the traffic is diverted onto the northbound lane of Card Sound Road. One southbound lane of U.S. 1 and Card Sound Road must remain open for emergency vehicles to reach an accident or a disabled vehicle, or to bring emergency supplies into the Keys. Improving the roadway is critical to the success of Monroe County's hurricane evacuation plan. FDOT relied on hurricane evacuation and needs modeling performed by Monroe County and the ACOE to confirm the need for improvements. All of the models used indicated that the project corridor is the controlling roadway segment for improving hurricane evacuation of the Keys. Additionally, FDOT relied on the Lewis Report of January 15, 1993, a study commissioned by the Governor of Florida. Recommendation No. 17 of the Lewis report recommends that FDOT expedite the design and construction of the project, which is viewed as being critical for increasing the rate of emergency evacuation. Dr. Robert Sheets, former director of the National Hurricane Center, testified that the failure to make improvements to the roadway would be "unconscionable." Dr. Sheets and Billy Wagner, the Director of Emergency Management for Monroe County, presented very compelling and very persuasive testimony that this project is essential for hurricane evacuation purposes. The proposed project is the minimum transportation improvement that will achieve a significant improvement in evacuation safety and clearance time. With the present two- lane configuration and narrow shoulders, evacuating traffic would be halted completely by a vehicle breakdown or an accident blocking one lane. Replacement of the Jewfish Creek Bridge will also facilitate the hurricane evacuation need for the project. In addition to improving the rate of evacuation, the project will make an evacuation safer. Emergency personnel cannot reach accidents on the roadway during an evacuation because, in certain segments, no roadbed exists adjacent to the northbound lane. A second northbound lane and wider road shoulders would enable disabled vehicles to be serviced and removed from the highway. The proposed changes to the road would improve emergency vehicles' access to an accident scene. The elevation of the roadway at Lake Surprise is so low that it can be flooded easily by a storm. The proposed project would replace the existing muck bed of the roadway with more stable material. The existing roadway is subject to settling and washout during storm events, which reduce the safety of the roadway itself and reduce the evacuation capacity of the roadway. If washout occurs, moving equipment to the islands for recovery efforts following a hurricane will be difficult or impossible. The proposed project will prevent erosion and reduce the effects of storm surge and wave action on the road during a hurricane. When the project has been completed, three lanes of evacuating traffic, two lanes from U. S. 1 and a third from Card Sound Road, will converge at Florida City. Representatives of FDOT, the Monroe County Sheriff's Department, the Florida Department of Law Enforcement and Monroe County Emergency Management have planned to manage the northbound traffic when it reaches Florida City during an evacuation. Several feasible alternatives exist, but additional planning is needed to prevent a monumental bottleneck at the northern terminus of the project. While it is clear that this project will not resolve all problems that exist as to hurricane evacuation, it is also clear that this project is essential to improve hurricane evacuation. SECTION 403.918(2)(a)2, FLORIDA STATUTES Section 403.918(2)(a)2, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect the conservation of fish and wildlife, including endangered species, or their habitats.” The District considered the effect of the direct loss of dredging and filling 149.07 acres of wetland. As set forth in previous sections, it is found that this loss will be offset by the mitigation. For use during construction of the project, FDOT will adhere to technical special provisions and special permit conditions 9 through 13 to protect manatees, crocodiles, alligators, indigo snakes, marine turtles, and valuable trees, palms and other wildlife, to minimize or preclude any impacts to those species. Additionally, any osprey nests around the Jewfish Creek Bridge area at the time of construction will be relocated by FDOT if necessary. As part of the development of the FEIS, as required by the Federal Highway Administration under the National Environmental Protection Act, FDOT obtained official letters of concurrence from the USFWS and NMFS that the project would cause no adverse impacts to endangered species under section 7 of the Endangered Species Act. That process also established the project's consistency with Florida Coastal Zone Management Program, as determined by the State Clearinghouse within the Office of the Governor, in coordination with DEP, the Department of National Resources and FGFWFC. The project also contains provisions to impact positively or enhance the conservation of fish and wildlife, including threatened or endangered species and their habitat, as described below. These were positive factors that further helped neutralize and offset the 149.07 acres of direct impacts. In addition, FDOT is required to evaluate the effectiveness of the fencing along the entire project corridor, discussed below, and report to the District on that effectiveness. If the District determines that the fencing could be more effective, it may require FDOT to implement those suggestions. South of the C-111 canal, construction of box culverts and bridges addresses impacts to the American crocodile, a listed endangered species. Problems were identified with placement of existing culverts, which did not provide enough clear space and which caused the crocodile to cross over the roadway rather than through the culvert. To address this problem, 15 larger box culverts and three bridges will be placed within the roadway. These provide the necessary clear space to allow the crocodile to safely pass under rather than over the road. The location of the box culverts was chosen by reviewing crocodile mortalities associated with road crossings. Placement of these box culverts and bridges will also improve the hydrological flow of water within the project area, provide a crossing area for manatees, and allow greater dispersal of the crocodile population throughout Florida Bay. Species expected to use these box culverts include aquatic and aquatic water dependent species in the area. They were primarily targeted for crocodiles, alligators, and manatees, but certain fishes, turtles, frogs and other species in the wetlands along the project corridor will utilize the culverts. The box culverts will have 100 feet of wingback fencing extending north and south of each culvert. The intent of the wingback fencing is to funnel wildlife into the box culverts. Intermittent or wingback fencing is appropriate south of the C-111 canal for two primary reasons. First, the animals which will be guided into the box culverts are aquatic dependent. The area south of the C-111 canal is primarily water, washed mangrove areas and tidal creeks. Crocodiles tend to move in tidal creeks. Second, it was not possible to ensure continuous fencing along all portions of the project south of the C-111 canal because there are existing businesses. It could not be assured that these businesses would keep a gate closed. The project originally proposed continuous fencing alongside the road where it abuts ENP. Continuous fencing was initially proposed because the initial application included a solid concrete barrier down the median of the road. If a crocodile did enter the road from the side with discontinuous fencing, after crossing one lane the crocodile would hit the barrier, but then easily find its way back to the area it came from. However, the project was later modified to include a tri-beam barrier because it lessens the footprint of the project and thereby lessens the wetland impact. Since the current application does not include a continuous barrier down the middle of the road, if a crocodile enters the road it would cross the tri-beam barrier, go across another lane of roadway before hitting a continuous fence. The animal would then run up and down that fence with nowhere to go except back across the road again. This would increase their exposure to a road kill. With the installation of bridges and culverts along the southern portions of the project corridor, there is no need for continuous fencing because aquatic wildlife, such as the American crocodile, will tend to follow the flow of water through the culverts rather than climb over the roadway. The FGFWFC and ENP oppose continuous fencing and prefer intermittent fencing south of C-111 canal since the project now includes a tri-beam barrier. Positive benefits also include construction of panther crossings at four locations north of the C-111 canal to account for impacts to the Florida panther, a listed endangered species, in the vicinity of the project, along with continuous fencing on both sides of the road north of the C- 111 canal. The crossings will be placed at locations that show historical use by wildlife, including areas at the Dade County Correctional Institute access roadway, the water control structure on the C-109 canal, and the berm of the C- 111 canal. The wildlife crossings are indicated by blue dots on FDOT's Exhibit 1. FDOT underwent years of extensive coordination with the environmental regulatory and resource agencies to design a project that would accommodate their ecosystem management plans. The location of the wildlife crossings was based upon radio telemetry data, collected from radio-collared panthers, and their typical corridor movement. The location was further chosen based on input from the USFWS and the FGFWFC. The continuous fencing north of the C-111 canal will prevent wildlife from crossing the road, and instead force them to use the wildlife crossings. The crossings were designed for panther use, the panthers being the shyest animal in the area. If panthers can be accommodated, then other threatened and endangered species and other wildlife are expected to use them. DOT studies of the effectiveness of wildlife crossings, with fencing, including crossings installed on Alligator Alley, establish that wildlife will use the crossings, both singly and in groups, and that the crossings substantially reduce, if not eliminate, automobile- related mortality of wildlife. Documented wildlife include panthers, wild turkeys, wading birds, alligators, deer, bobcats, black bears and raccoons. SECTION 403.918(2)(a)3, FLORIDA STATUES Section 403.918(2)(a)3, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling.” The replacement of the bascule bridge at Jewfish Creek with a 65-foot high fixed-height bridge will be a benefit to navigation. Because Jewfish Creek is part of the intracoastal waterway, the existing bridge has to be frequently raised or lowered to accommodate marine traffic. Because of the age of the existing structure, frequent breakdowns have been experienced. Marine traffic is stopped or delayed if the bridge cannot be raised or if there is a delay in raising the bridge. Vehicular traffic is stopped while the bridge is raised. Regarding the flow of water, the project incorporates wildlife box culverts and bridges, which will improve tidal flushing and the flow of water south of the C- 111 canal. The District considered this to be a positive consideration under the public interest test. The 25 hydrologic culverts north of the C-111 canal were also a positive factor in the test because the culverts provide future water management capability. Erosion and shoaling are neutral factors in the public interest test because the permit conditions contain a plan to control erosion and shoaling during construction and to provide for road stabilization after construction. In addition, there is a positive factor regarding shoaling in that the roadway area now has a lot of storm action, causing problems with erosion on the side of the road. The project provides for road stabilization, which is a neutral to positive factor in the public interest test. SECTION 403.918(2)(a)4, FLORIDA STATUTES Section 403.918(2)(a)4, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect the fishing or recreational values or marine productivity of the project.” A positive factor pertaining to marine productivity is the box culverts and bridges south of C-111, which will allow marine species to travel beneath the road to access the water on both sides of the road. Removal of the causeway along Lake Surprise opens that water body back up to one contiguous system, which is also a positive factor. The seagrass mitigation addressed in previous sections will also improve marine productivity and provide habitat for fish. SECTION 403.918(2)(a)5, FLORIDA STATUTES Section 403.918(2)(a)5, Florida Statutes, requires the permitting agency to consider “[w]hether the project will be of a temporary or permanent nature.” The project is permanent, though some construction impacts are temporary in nature. Once temporary impacts have ended and the project is complete, the project will be a positive benefit, because of the construction of the SWM system, culverts, animal underpasses and other benefits as set forth above. SECTION 403.918(2)(a)6, FLORIDA STATUTES Section 403.918(2)(a)6, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061.” This factor is not at issue. SECTION 403.918(2)(a)7, FLORIDA STATUTES Section 403.918(2)(a)7, Florida Statutes, requires the permitting agency to consider “[t]he current condition and relative value of functions being performed by areas affected by the proposed activity.” A percentage of wetlands immediately adjacent to the road are impacted by exotic vegetation. Areas further out are part of a significant wetland ecosystem and are considered high quality. This project contains an exotic control program within FDOT's right of way, which is a positive consideration in the public interest test. Wetlands are currently receiving untreated storm water, which runs off the road immediately into the adjacent wetlands and water bodies without treatment. The project will include a SWM system where none currently exists as is detailed in the previous sections. This is a positive factor in the public interest test. The direct impacts of the project on 149 acres of wetlands alongside the roadway is not as large or significant as the impact caused by placement of the original embankment and resulting cut off of the eastern and western portions of the Everglades north of the C-111 canal. Overall, the concurrent and upfront mitigation efforts of FDOT are of regional significance and benefit to Everglades ecosystem by helping to repair the damage caused by the original embankment. THE PROJECT IS CLEARLY IN THE PUBLIC INTEREST The District appropriately weighed all considerations in determining that the project is clearly in the public interest. The greater weight of the competent, credible evidence established that the project is clearly in the public interest. RIGHT OF WAY PERMIT APPLICATION The land encompassed by the ROW permit has been properly adopted as a "work" of the District, requiring District authorization via a ROW Permit Modification to FDOT. The District's real property interest in the C-111 ROW applicable to the ROW permit modification consists of both fee simple and easement interests. The evidence is clear that DOT's application for the permit modification was thoroughly reviewed by the District, consistent with the District's established ROW permit review process. The District presented uncontroverted evidence and expert testimony to establish by a preponderance of the evidence that issuance of the permit modification to FDOT is consistent with all applicable District statutes, rules and other criteria, including the District's conditions for issuance of ROW Permits set forth in Rule 40E-6.301, F.A.C. FBII offered no evidence or testimony to the contrary. FUTURE MODIFICATIONS Modifying the project at a later date to pave a second southbound lane would require a District ERP permit. The addition of impervious surface triggers the District's SWM jurisdiction in this regard. However, FDOT established that that it had no current plans for further widening. The permit conditions require secondary and cumulative impacts associated with the increased capacity be addressed in accordance with the rules and criteria in effect at the time of any application for future widening. In addition, the permits require that FDOT must comply with any more stringent water quality criteria in effect at the time of any future widening. MODIFICATIONS AT THE FINAL HEARING At the Final Hearing, the District issued an Addendum to Staff Report for each of the SWM and WRM permits. The amendments made non-substantive changes to the District's staff reports regarding fencing along the roadway, performance of a study of fencing on the roadway by FDOT, water quality sampling along the roadway, assignment of mitigation credits, and other technical changes in wording for purposes of clarification. The changes set forth in the District's Exhibits 5 and 6 do not create impacts to the environment beyond those addressed elsewhere herein.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Governing Board of the South Florida Water Management District enter a Final Order that issues the three permits challenged in this proceeding (SWM Permit No. 940606-10, WRM Permit No. 9460606-2-D, and ROW Permit No. 2584) subject to the conditions contained in the staff reports on the SWM permit application and the WRM permit application and subject to the additional permit conditions reflected by District Exhibits 5 and 6 and by the Findings of Fact pertaining to the permit for the relocation of the FKAA pipe. DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Leon County, Florida. ___________________________________ CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 11th day of April, 1997.
The Issue The issue is whether to approve the Department of Transportation's (DOT's) application for a 50-year Sovereign Submerged Lands Public Easement (easement) to replace an existing bridge over a channel that connects Little Lake Worth (Lake) and Lake Worth Lagoon (Lagoon) in Palm Beach County (County), Florida.
Findings Of Fact Background On February 24, 2010, DOT filed with the District applications for an ERP and a 50-year easement on approximately 0.54 acres of submerged lands. The purpose of these filings was to obtain regulatory and proprietary authority to replace the existing Little Lake Worth Bridge (bridge) due to structural deficiencies noted during inspections performed in 2006. Because of "serious deterioration of the concrete slab and reinforcing steel," the bridge is under weight restrictions until construction is completed. See DOT Exhibit 5. An easement is required for road and bridge crossings and rights-of-way which are located on or over submerged lands. See Fla. Admin. Code R. 18-21.005(1)(e)2. Because DOT did not have an easement for the existing bridge, it was required to obtain one for the replacement work. See Fla. Admin. Code R. 40E-400.215(5). Under an operating agreement with the Department of Environmental Protection (DEP), the District has the responsibility of processing applications to use submerged lands for roadway projects. See Fla. Admin. Code R. 62-113.100. First constructed in 1965, the existing bridge has three spans, is 60 feet long, has two lanes (one in each direction), and crosses a channel (or canal) that connects the Lagoon to the south and the Lake to the north. The bridge is located in an unincorporated part of the County east of the City of Palm Beach Gardens and north of the Village of North Palm Beach. Highway A1A (also known as Jack Nicklaus Drive) is the roadway that crosses the bridge. Although the ERP application was challenged by Petitioners, their Petition was dismissed as being legally insufficient, and a Final Order approving the application was issued by the District on June 9, 2010. See Joint Ex. 1 and Respondents' Joint Ex. 1. No appeal of that action was taken. Petitioners did not contest the application for an easement at the District level. The District staff initially determined that it could process the application for an easement under the authority of rule 18-21.0051(2). However, on July 28, 2010, the District sent a memorandum to DEP's Office of Cabinet Affairs requesting a determination on whether the project was one of heightened public concern. See Respondents' Joint Ex. 2. After further review by the DEP's Deputy Secretary of Land and Recreation, the project was determined to be one of heightened public concern because of considerable public interest; therefore, the decision to issue an easement was made by the Board, rather than the District. See Fla. Admin. Code R. 18-21.0051(4). On November 9, 2010, the Governor and Cabinet, sitting in their capacity as the Board, conducted a public hearing on the application for an easement. Notice of the meeting was provided to persons expressing an interest in the matter. Prior to the meeting, the District and Board staffs submitted a favorable recommendation on the application, together with supporting backup information, including a report from the FFWCC concerning impacts on manatees and a seagrass study conducted by an outside consulting firm. See Respondents' Joint Ex. 3, 6, and 7. At the meeting, a District representative, Anita R. Bain, described the purpose of the application, how the issues raised by Petitioners were addressed, and the bases for the staff's recommendation that the application be approved. See Joint Ex. 3, pp. 96-101. The DOT Assistant Secretary for Engineering and Operations also described the new bridge's design and technical aspects. Id. at pp. 102-106. The Board then heard oral comments from both proponents and opponents of the project. Id. at pp. 106-154. Petitioners and their counsel were among the speakers. No speaker was under oath or subject to cross-examination. At the conclusion of the brief hearing, the Board voted 3-1 to approve the easement. The decision is memorialized in a Notice of Board Action dated November 15, 2010. See Respondents' Joint Ex. 4. Consistent with long- standing practice, a written point of entry to contest, or notice of right to appeal, the decision was not given to any person. Throughout this proceeding, the Board and DOT have contended that the Board's decision on November 9, 2010, is proprietary in nature and not subject to a chapter 120 hearing. They assert that Petitioners' only administrative remedy, if any, and now expired, is an appeal of the Board's decision to the district court of appeal under section 120.68. Petitioners contend, however, that they are entitled to an administrative hearing to contest the decision. That issue is the subject of a pending motion to dismiss filed by the Board. However, Petitioners have obtained the remedy they were seeking from day one-- a chapter 120 hearing -- and they were afforded an opportunity to litigate all issues raised in their Amended Petition. All due process concerns have been satisfied and the issue is now moot.1 Except in one respect, Petitioners do not contest any aspect of the easement or the project and its related impacts; they only object to DOT increasing the navigational clearance of the bridge from 8.5 feet to 12.0 feet above Mean High Water (MHW). In short, the main objection driving this case is a fear that a greater number of boats, mainly larger vessels, will access the channel and Lake if the vertical clearance is raised, and disturb the peace and tranquility that has existed over the last 30 years. The Parties Mr. Thomas' property, which he purchased in 1972, is located on the east side of the channel that connects the Lake and Lagoon. The residence faces to the northwest and is around 200 feet north of the bridge and a short distance south of the entrance into the Lake. See Board Ex. 13. Mr. Thomas is not an upland owner adjacent to the project site. He has a dock, a 19 and 1/2-foot boat, and a seawall built around 25 years ago. Over the years, he has lost around two to two and one-half feet of sand on the side of the seawall facing the water due to erosion caused by wave action. He also has a small, but slowly increasing, gap between his dock and the seawall. Mr. Thomas does not fish, but he enjoys watching fish and wildlife in the area, water-skiing with his family on the Lake, and swimming in the channel. He noted that around 75 percent of boaters traversing the channel observe reasonable speed limits, but the other 25 percent operate their vessels at speeds up to 50 miles per hour. Mr. Thomas fears an increase in the clearance will result in more boat traffic (attributable in part to Lake residents who have a dock but no boat and would now purchase one), and larger boats for some Lake residents who now own smaller vessels. He asserts that this will result in more wave impact on his seawall, adversely affect the natural resources in the area, and impact his rights of fishing, swimming, water skiing, and view in the channel and Lake. Around 30 years ago, John A. Tory (now deceased) purchased waterfront property in Lost Tree Village, a residential development that surrounds part of the Lake. The residence lies around one-half the way up the eastern shore of the Lake. Thus, the property is not directly adjacent to the project. The property has a dock and concrete seawall, which has been repaired periodically due to erosion. Mr. Tory did not own a boat. His widow, who is not a party and jointly owned the home with her late husband, still occupies the residence during the winter months. John H. Tory, the son of John A. Tory, stated that he is involved in the case as a representative of his father's estate, rather than on his own behalf as a property owner on the Lake. He owns waterfront property in Lost Tree Village located on a small lagoon immediately north of the main body of water comprising the Lake, or around 2,000 feet north of the bridge. During the winter months, Mr. Tory has observed manatees in the small lagoon, but not the Lake. Mr. Tory acknowledged that the new bridge will not affect ingress or egress to his late father's home. However, he fears that if the bridge clearance is raised to 12 feet, it will result in more boat traffic on the Lake, larger boats, and the presence of live-aboards, who now anchor in the Lagoon. He asserts that these conditions will disturb the peace and tranquility on the Lake, cause the fish and wildlife to leave, and impact the safety of his children and grandchildren who occasionally swim in the Lake. The DOT is a state agency having the responsibility to build roads and bridges throughout the State. It applied for the easement that is the subject of this case. There is no dispute that DOT has sufficient upland interest necessary to obtain an easement. The Board is vested with title to all sovereignty submerged lands, including the submerged real property in the channel. The Project The new bridge will be 90 feet in length with a vertical clearance of 12 feet above MHW. It will be constructed in the footprint of the existing structure. The replacement bridge will continue to be two lanes and has a design service life of 75 years. The new bridge will expand the vehicle lane widths from 10 to 12 feet, expand the road shoulder from six to eight feet, and expand the sidewalks from four to six and one- half feet in width. Both the horizontal and vertical navigational clearances will be increased. It is undisputed that by increasing the horizontal clearance, navigational safety will be improved. Also, by increasing the vertical clearance, a boater's focus will be redirected from the low clearance to the water, the proximity of the pilings, approaching vessels, and other potential hazards. In conformance with DOT design requirements, the vertical navigational clearance will be raised from 8.5 feet to 12 feet above MHW. The DOT's Plans Preparation Manual and Structures Design Guidelines both provide that for concrete superstructures over highly corrosive waters due to chloride content, the minimum vertical clearance should be 12 feet above MHW. See DOT Ex. 7 and 8. This amount of clearance is necessary to ensure bridge longevity in aggressive saltwater marine environments. Therefore, a 12-foot clearance is appropriate. Also, the new height is calculated to give the bridge a 75-year lifespan; in contrast, a bridge with an eight- foot clearance would have a shorter lifespan. Except for bridges with unique limiting conditions, all bridges in the County are now being constructed at the 12-foot height. All work will be performed without the necessity for large cranes or barges to pile-drive from the water. Essentially all work will be done from the land adjacent to the bridge. However, small vessels will be needed to put construction workers on the water while the crane is being operated from land. A $3.3 million design-build contract was executed by DOT and The Murphy Construction Company in May 2009, and the contractor is awaiting the outcome of this proceeding before commencing work. Given the size and scope of work, the project is considered a "minor" bridge project. DOT is required to implement Standard Manatee Conditions for In-Water Work during construction of the bridge. Pursuant to these conditions, DOT is required to train personnel who will be at the job site to identify manatees and log when they are seen in the area. Signage will be placed at the bridge construction site and on any equipment in the water warning about hazards to manatees. If a manatee is found in the vicinity, work must cease to allow the manatee to safely traverse the construction zone and not be trapped in the turbidity curtains. Best management practices for environmental impacts will be required during construction. No dredging or excavation of the channel is planned, and blasting will not be allowed during construction. Although there are 0.12 acres of mangroves within the boundaries of the submerged lands, the project was redesigned to completely avoid direct mangrove impacts. Except for one four-square-meter patch of seagrass (Turtle grass) located a little more than 200 feet southeast of the project site, no seagrasses are located in or adjacent to the project site. The new 12-foot height will accommodate a 100-year storm surge event at this location. The Lake and Lagoon The Lagoon stretches some 20 miles from the bridge southward to a point just north of the City of Boynton Beach. It averages around one-half mile in width. The Intracoastal Waterway (ICW) generally runs in a north-south direction through the middle of the Lagoon before turning to the northwest into Lake Worth Creek, around a mile south of the bridge. The Lagoon is divided into three segments: north, central, and south. The north segment is more commonly known as the North Lake Worth Lagoon. The Lake Worth Inlet, located around five miles south of the bridge, provides an outlet from the North Lake Worth Lagoon to the deeper waters in the Atlantic Ocean. The Riviera Beach Power Plant is located on the western side of the Lagoon just south of the Lake Worth Inlet and is a warm-water refuge area for manatees during the winter months. Peanut Island, a County-owned recreational site, lies in the ICW just north of the power plant. The northern boundary of the John D. MacArthur Beach State Park (State Park) is less than a mile south of the project area on the eastern side of the Lagoon. There are extensive seagrass beds in the Lagoon mainly along the shoreline around the State Park and Peanut Island. One survey conducted in 1990 indicated there are 2,100 acres of seagrass in the Lagoon. See Petitioners' Ex. 15. The same study concluded that around 69 percent of all seagrasses in the County are located in the northern segment of the Lagoon. Id. The Lake is designated as a Class III water body, is around 50 acres in size, and measures no more than a half-mile in length (running north to south) and a few hundred feet wide. Although the Lake is open to the public, boat access is only through the channel since there are no boat ramps on the Lake. Several residential developments, including Lost Tree Village and Hidden Key, are located north of the bridge and surround the Lake. The Lake has no natural shorelines since seawalls have been constructed around the entire water body. Aerial photographs reflect that many of the residences facing the Lake or channel have docks, but not every dock owner has a boat. Navigation under the bridge is somewhat tricky because the water current goes in one direction while the bridge points in another direction. Also, due to the accumulation of sand just south of the bridge, the channel is shallow which requires that an operator heading north "make sort of an S-turn to take the deepest water possible to go through." By widening the bridge pilings and raising the navigational clearance, as DOT proposes to do, the tidal flow will slow down and all boats will be able to enter and depart the Lake in a safer manner. Currently, except for one cigarette-style boat in the 30-foot range, the boats on the Lake are small boats (under 30 feet in length) with outboard motors. T-top boats (those with a stationery roof) with no radar or outriggers on top could "possibly" get under the bridge, but those with sonar cannot. Also, "most" boats with large outboards that have a draft of around 18 inches can now access the Lake. At high tide, smaller vessels with in-board motors that draw three and one-half to four feet could "probably" get under the bridge, but once inside the Lake, they would be "trapped" at low tide. If the navigational clearance is raised, Petitioners' boating expert, Captain Albritton, opined that the greatest impact will not come from the general public, but from residents on the Lake who have no boat but may now buy one, or residents who will buy larger vessels. However, he could not quantify this number. He further opined that boaters who do not live on the Lake would have no reason to go there because it has no attraction. He also opined that larger boats operated by non- residents in the Lagoon will continue to either exit the Lagoon to deeper waters through the Lake Worth Inlet or continue on the ICW, which turns off to the northwest around a mile south of the bridge. If several boats operate simultaneously on the Lake, significant wave action is created because the Lake is surrounded by a seawall with no beach or shoreline to absorb or reduce the wave impact. Due to the wave action and the Lake's small size, it is highly unlikely that more than four boats could ever use the Lake at the same time. Even then, Mr. Thomas described conditions as "pretty crowded" with "choppy" water and not a pleasant experience for boaters. Likewise, Captain Albritton agreed that with only a few vessels on the Lake, the water becomes "very rough," and "safety" considerations prevent or discourage other vessels from accessing or using the Lake. Captain Albritton also agreed that it would only be speculation to assume that there would be more boating in the area after the project is completed. Mainly during the winter months, a large number of vessels anchor in the North Lake Worth Lagoon. At least 95 percent, if not more, are sailboats with a fixed keel that prevents them from navigating beneath the bridge even with a 12-foot clearance. Also, the water depth in the Lake is greater than the North Lake Worth Lagoon, and boaters prefer mooring in shallower waters. Admittedly, a few houseboats powered by outboard motors occasionally frequent North Lake Worth Lagoon, and if they tilt their motors up, it might be possible for them to navigate under the bridge with a 12-foot clearance. However, houseboats typically have a flybridge (an upper deck where the ship is steered and the captain stands) above the roof of the house and would not be able to navigate under the bridge even with a heightened clearance. There is no evidence that a houseboat or other live-aboard has ever entered the Lake. The Lake is included in the John D. MacArthur Beach State Park Greenline Overlay (Greenline Overlay), which is part of the Future Land Use Element (FLUE) of the County's Plan. The resources within the Lake are part of the Greenline Overlay, the purpose of which is to protect conservation areas, prevent degradation of water quality, control exotic species, and protect critical habitat for manatees and threatened and endangered species. See Petitioners' Ex. 10, FLUE Obj. 5.3, p. 94. Petitioners' Objections Only direct adverse impacts within the project site must be considered by the Board before approving the easement. This is because potential secondary and cumulative impacts associated with the project were already considered by the District in the regulatory process, when the ERP was issued. Direct impacts are those that may occur within 200 feet north and south of the centerline of the bridge. A 400-foot area is appropriate as the project is considered "minor" and simply replaces an existing structure. Because of public interest in the project, however, the Board (with advice from the District, DOT, other agencies, and outside consultants) again considered the secondary, cumulative, and even speculative impacts of the project. Having determined that there were no adverse impacts of any nature, the Board concluded that the easement should be granted. Petitioners agree that neither the construction work nor the bridge itself will cause any direct impacts within the project site. However, they contend that the secondary impacts of the project will be "significant." Secondary impacts are those that occur outside the footprint of the project, but which are closely linked and causally related to the activity. Petitioners did not present any credible evidence that cumulative adverse impacts are associated with the project. Petitioners argue the project will cause secondary impacts on seagrasses, manatees, seawalls (through erosion caused by wave-action), and recreational uses such as swimming, boating, nature viewing, canoeing, and fishing. They further argue that DOT has failed to take any steps to eliminate or reduce these impacts, which could be accomplished by keeping the navigational clearance at the same height. They also contend that the project will unreasonably infringe upon their riparian rights, and that the project is inconsistent with the local comprehensive plan and State Lands Management Plan.2 Finally, they assert that the project is contrary to the public interest. These allegations implicate the following provisions in rule 18- 21.004: (1)(a) and (b);(2)(a), (b), (d), and (i); and (3)(a) and (c).3 The parties have stipulated that all other requirements for an easement have been satisfied. The allegations are based primarily, if not wholly, on the premise that a higher vertical clearance on the bridge will allow larger vessels to access the Lake and channel and increase boat traffic in the area. Impact on Seagrasses Petitioners first contend that seagrasses will be secondarily impacted by the project. Seagrasses are completely submerged grass-like plants that occur in shallow (i.e., no more than six feet of water depth) marine and estuarine waters due to light penetration. There are seven species in the State; the rarest species is Johnson's seagrass (Halophilia johnsonii), a threatened species found mainly around inlets that begin south of the Sebastian Inlet in Brevard County and continue to the northern parts of Biscayne Bay in Dade County. Unlike some seagrass species, Johnson's seagrass actually increases in areas with a higher wave energy climate. Although there may be some isolated patches of seagrasses just beyond the 200-foot area southeast of the bridge, the first significant coverage of seagrass occurs along the shallow, eastern shoreline of the North Lake Worth Lagoon, in and around the State Park and Munyon Island, an island just southeast of the State Park; both are around one-half mile south of the proposed activity. Some of these species are Johnson's seagrass. Petitioners' expert agreed that during his site inspection, he found no seagrasses until he approached the State Park. Other significant coverage is located in and around Peanut Island, which lies around five miles south of the bridge. There are no seagrasses in the Lake. The seagrass beds along the shoreline in the North Lake Worth Lagoon are "relatively stable" and wax or wane depending mainly on the water-quality conditions in the system. During heavy rainfall events, the water in adjacent canals is released and can adversely affect the water quality. Although there are no canals discharging waters into North Lake Worth Lagoon north of where the ICW deviates into Lake Worth Creek, there are numerous impervious areas near the bridge (associated with other developments) that discharge stormwater into the Lagoon south of the project site. Also, there is a canal that delivers water from upland regions into the Lagoon just south of Munyon Island. Besides heavy rain, boats operating at higher speeds can create suspended sediments and cloudy water conditions that adversely affect the seagrass. However, these impacts have occurred for years, they will continue even if the bridge clearance is not raised, and they are wholly dependent on one's operation of the watercraft. There is no competent evidence, and only speculation, that raising the navigational clearance on the bridge will lead to a greater number of boats in the Lagoon and/or cause boats to operate recklessly in or near the seagrass beds. In fact, the evidence shows that a majority of the boat traffic operates in the ICW and deeper waters of the Lagoon, and not in the shallow waters along the shoreline. DOT has given reasonable assurance that the project will not cause secondary adverse impacts to seagrasses in the Lagoon. Impact on Manatees Petitioners also contend that there will be secondary adverse impacts on manatees, again due to increased boat traffic in the area. They point out that the overall mortality rate for manatees in the County has increased nearly every year since 1974; that 39 percent of all mortalities in the County are attributed to watercraft strikes; that the North Lake Worth Lagoon provides important habitat (seagrasses) for manatees; and that manatee abundance and watercraft-related strikes are highest in that area. Based upon an analysis conducted by the FFWCC, the more persuasive evidence on this issue supports a finding that the bridge, with a heightened clearance, will not significantly increase risks to manatees. See Respondents' Joint Ex. 6. A similar conclusion was reached by the United States Fish and Wildlife Service. See Respondents' Joint Ex. 17. Even if larger boats can access the channel, the probability of a boat striking a manatee will not change. It is true that manatees sometimes travel into the Lake during the winter months. However, no reported watercraft- related strikes have occurred, and only one manatee carcass (a dependent calf) has ever been found in the Lake, and that was a perinatal death unrelated to boat activity. Aerial surveys of manatees reflect that the greatest amount of manatee presence and activity is far from the project site. See Respondents' Joint Ex. 12. This is also confirmed by the fact that the primary manatee gathering area in the County is around the Riviera Beach Power Plant, which lies five miles south of the bridge. Even the County's Manatee Protection Plan has designated the northern area of the Lagoon as a preferred area for marinas and docks because of the lower incidence of manatees in that area. Finally, the evidence shows that the majority of manatees traveling north through the Lagoon turn into Lake Worth Creek one mile south of the bridge and continue northward in the ICW, rather than into the channel or Lake. Reasonable assurances have been given that the project will not result in significant secondary adverse impacts on manatees. Erosion of Seawalls Mr. Thomas points out that wave action from existing boat traffic has been contributing to erosion of his seawall for many years. He argues that if the bridge height is raised, there will be increased boat traffic, which will cause further damage to existing seawalls on the Lake and channel. Wave action is caused not only by the operation of boats entering or departing the Lake, but also by water skiers and jet skiers on the Lake itself. These activities will continue, even if the clearance is not raised. This is because non-resident skiers can easily access the Lake with the existing 8.5-foot clearance, while residents on the Lake have access from their docks. The only real limitation on these activities is the Lake's size and unsafe conditions that occur when more than one or two boats are present, and not the bridge's vertical clearance. Whether boaters will observe no-wake speeds or operate at a higher speed in the channel and Lake is open to debate. As noted earlier, there is no competent evidence, but only speculation, to support Petitioners' claim that the behavior of boaters will change, or that boats will be operated more recklessly, simply because the clearance is raised. The evidence supports a finding that the project will not have a significant impact on seawalls due to increased traffic or other related usage in the Lake and channel. Riparian Rights The riparian boundary lines of Mr. Thomas and Mr. Tory are depicted on Board Exhibits 13 and 14, respectively, and are not in dispute. Petitioners contend that increased boat traffic will unreasonably infringe upon their riparian rights of view, fishing, boating, canoeing, and swimming. They also assert that with a higher clearance, the Lake will "be very popular for live-aboards, especially in the winter months, because of its secluded nature and easy access to amenities," and this will also impact their riparian rights. They do not contend that the project will affect their right of ingress or egress or their right to wharf out (build a dock) from their upland property. Rule 18-21.004(3)(c) provides that "[a]ll structures and other activities must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland riparian owners." (Emphasis added). Traditional riparian rights are generally considered to be ingress, egress, the ability to wharf out, and view. See § 253.141(1), Fla. Stat.; Fla. Admin. Code R. 18-21.004(3)(a). In determining whether this rule is satisfied, the Board only considers adjacent upland riparian owners who are directly adjacent to and abut the bridge and whether the proposed activities will block their ingress/egress or unreasonably restrict their rights in any other way. In this case, adjacent upland owners are not affected. Although neither Petitioner is an "adjacent upland riparian owner" within the meaning of the rule, because of the interest shown by some nearby residents, the Board also considered potential impacts on property owners in the channel and Lake, including Petitioners, to determine whether their riparian rights were unreasonably affected. In doing so, it followed the long-established principle that riparian rights are not exclusionary rights, and the public has a concurrent right with a riparian owner to fish and swim in waters owned by the State, and a right to navigate. See, e.g., The Ferry Pass Inspectors' and Shippers' Ass'n v. Whites River Inspectors' and Shippers' Ass'n, 57 Fla. 399, 48 So. 643, 645 (Fla. 1909). The more persuasive evidence shows that the activities are designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland owners or other nearby property owners on the Lake and channel. Petitioners failed to establish that the proposed activity (or the use of the waters by members of the public) will prevent them from accessing navigable waters from their property or wharfing out. Likewise, they presented insufficient evidence to establish that the activities will adversely affect their view. A similar contention that their "recreational" rights of fishing, boating, swimming, and nature viewing will be secondarily impacted has been rejected. See Fla. Admin. Code R. 18-21.004(2)(a). A concern that once the project is completed, live- aboards (i.e., vessels used solely as a residence and not for navigation) will move from the Lagoon to the Lake and unreasonably infringe upon Petitioners' riparian rights is without merit. As noted above, virtually all of the live- aboards in the North Lake Worth Lagoon are sailboats, which cannot access the Lake even if the clearance is raised. Finally, the County has enacted an ordinance that prohibits live-aboards in the Lake and Loxahatchee River. See Respondents' Joint Ex. 18. Law enforcement agencies are charged with the responsibility of enforcing that ordinance. Comprehensive Plan and State Plan Although there is no specific requirement in chapter 18-21 to do so, pursuant to section 339.135 the proposed "work program" was reviewed for consistency with the County's Plan by the Department of Community Affairs (DCA), now designated as a division in the new Department of Economic Opportunity. Unless a project is inconsistent with a plan requirement, the DCA does not provide written comments. In other words, no response is an indication that the project is consistent with all local plan requirements. After reviewing the project, the DCA did not respond. Therefore, the project was deemed to be consistent with the County Plan. This information was submitted to the Board prior to its decision. See Joint Ex. 2. Rule 18-21.004(1)(i) requires that the State Plan "shall be considered and utilized in developing recommendations for all activities on submerged lands." Petitioners contend that the new bridge will violate the following policies in the State Plan: that submerged grasses be protected; and that natural conditions be maintained to allow the propagation of fish and wildlife. However, the protection of submerged grasses and natural resources was considered by the District before submitting a recommendation to the Board. To the extent this rule may apply, if at all, to the pending application, its requirements have been met. Petitioners also contend that the project is inconsistent with FLUE objective 5.3, which requires the County to maintain the Greenline Overlay in order to protect natural resources in the area. They argue that the proposed activity is inconsistent with the requirement that the greenline buffer be protected from potentially incompatible future land uses; critical habitat for wildlife, including threatened and endangered species; and manatees. See Petitioners' Ex. 10, FLUE obj. 5.3, p. 94. Petitioners cite no authority for their contention that consistency with local comprehensive plans is a requirement for approving an application to use submerged lands. Assuming arguendo that it is, the easement is not inconsistent with the above objective, as the replacement of an existing structure is not an incompatible future land use, and it will not impact seagrasses or manatees. Public Interest Rule 18-21.004(1)(a) provides that "all activities on sovereignty lands must not be contrary to the public interest." Rule 18-21.003(51) defines "public interest" as "demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action." The same rule requires that in determining public interest, the Board "shall consider the ultimate project and purpose to be served by said use . . . of lands or materials." Although Petitioners agree that the project is for a public purpose, they contend that DOT failed to demonstrate that the project creates a net public benefit, and therefore it does not meet the public interest test. However, the so-called "net public benefit" standard relied upon by Petitioners appears to be derived from rule 18-21.004(4)(b)2.e., which applies to the use of submerged lands for private residential multi-family docks, and not public easements. In any event, the project has a number of positive attributes that militate against finding that it is contrary to the public interest. Until the project is completed, the bridge is structurally deficient and it presents a serious safety concern to the public. Although the bridge height will be increased, with the slopes being provided over a greater distance, the view of oncoming traffic across the bridge is better and safety will be improved for motorists. Increasing the bridge height will also improve navigation for boaters entering or departing the Lake. DOT is using a preferential engineering design, which will increase the lifespan of the bridge to 75 years. The new design will provide for a slower velocity of water flow through the channel, which means an easier and safer route for boaters traversing the channel. Currently, almost all vessels (except a few small ones transported on trailers) operated by the Palm Beach County Sheriff's Office and the FFWCC are unable to access the Lake in the event of an emergency due to emergency lights, antenna, and sonar equipment mounted on the roofs of their vessels. This prevents them from responding to incidents that may occur on the Lake, including serious crimes, accidents, fires on board vessels, manatee rescues, and other related enforcement matters. Representatives of both agencies indicated that with a 12-foot clearance, their vessels will be able to access the Lake. Petitioners argue, however, that in the event of an emergency they would call a security officer for Lost Tree Village. But public comment by a security officer for that development indicated that security personnel only patrol three to five hours per day, they are not sworn law enforcement officers, they do not have arrest authority, and they could not undertake rescues if more than two persons were injured. Collectively, these considerations support a finding that the proposed activities on sovereignty submerged lands are not contrary to the public interest. Mitigation and Avoidance Rule 18-21.004(2)(b) provides in part that if the activities will result in "significant adverse impacts to sovereignty lands and associated resources," the application should not be approved "unless there is no reasonable alternative and adequate mitigation is proposed." See also Fla. Admin. Code R. 18-21.004(7). Petitioners argue that in order to avoid significant adverse impacts, a reasonable alternative is to add a nonstructural horizontal member to the bridge in order to retain the existing clearance of 8.5 feet. There are no significant direct, secondary, or cumulative adverse impacts to the submerged lands or natural resources associated with the bridge or its construction. Therefore, the Board is not required to consider design modifications. Moreover, no bridges have ever been constructed in the manner suggested by Petitioners, and no design criteria currently exist for the implementation of such a nonstructural element on a bridge. A permanent member would cause the same concerns as having a lower bridge because it would be susceptible to the aggressive water environment that could impact the life of the Bridge. If a non-permanent member were attached to the Bridge, it would require periodic maintenance and evaluation. Either type of control would present engineering liability concerns, as well as a hazard to approaching boaters who might not be able to discern that the clearance is 8.5 feet when the bridge itself is 12.0 feet above MHW. DOT does not have any design guidelines, standards, or specifications for warnings, signage, or advanced notification to boaters regarding navigation restrictions. In short, such a restriction would be contrary to the public interest because of maintenance, safety, and liability issues that may arise. The elimination and reduction of impacts is not required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund issue a final order approving DOT's application for a 50-year easement to use Sovereign Submerged Lands to replace the Little Lake Worth Bridge in Palm Beach County. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2011.
The Issue The issues for disposition are whether BJM Associates, Inc. is required to apply for and obtain a drainage connection permit pursuant to rule 14-86, Florida Administrative Code, and if so, whether BJM Associates, Inc., has failed to obtain that permit.
Findings Of Fact Respondent, BJM Associates, Inc. (BJM) is the owner and developer of Rosetta Villas Subdivision, located in Orange County, Florida, (Respondent’s prehearing Statement) Petitioner, Department of Transportation (D0T) purchased an adjacent parcel, including a retention pond, “Pond A”, in 1991, in anticipation of a road-improvement or extension project for Maitland Boulevard. The pond was purchased from Rose Industrial Park, a permitted development also adjacent to the pond. Rosetta Villas Subdivision received Orange County subdivision approval in 1986 and 1988, and a St. John’s River Water Management District permit for stormwater facilities in 1991. Lots have been platted, streets have been constructed and homes have been sold. Rosetta Villas Subdivision includes a water retention pond on-site, built in 1995. There is a pipe from that pond which discharges water into a ditch that is partially within the DOT right of way. The ditch has a 30-inch concrete pipe which discharges into DOT’s Pond A. There is some indication in the record that a diversion ditch was part of an over-all permit for the Rose Industrial Park development prior to DOT’s purchase of Pond A. The diversion ditch was intended to convey stormwater around, and not into Pond A. The diversion ditch south of Rosetta Villas and north of Pond A does not convey Rosetta Villas’ run off around Pond A. Instead the 30-inch concrete pipe conveys Rosetta Villas’ overflow water into Pond A. The 30-inch concrete pipe was constructed by BJM in 1995 after an existing, much smaller, pipe became clogged. BJM contends that the pipe was replaced at the direction of someone from DOT. While that contention is not disputed, nothing in this record supports any suggestion that DOT is now estopped from requiring a drainage connection permit. At hearing BJM’s own expert witness opined that the 30-inch pipe which now discharges into Pond A requires a connection permit. (Transcript, p. 130) BJM does not have that permit and, after meetings and extensive discussion with DOT staff, has not applied for the permit.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the Department of Transportation issue its Final Order requiring BJM to apply for a drainage connection permit pursuant to chapter 14-86, Florida Administrative Code. DONE and ORDERED this 24th day of February 1997 in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February 1997. ENDDNOTE 1/ BJM presented extensive evidence regarding the diversion ditch or swale and its intended purpose. It may be possible for BJM to redirect its out-flow however, the current status of the drainage system. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Transportation Burns Building, Mail Station 58 608 Suwannee Street Tallahassee, Florida 32399-0458 Bernard J. Martin, Esquire 506 Wymore Road Winter Park, Florida 32789 Pamela Leslie, General Counsel 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn.: Diedre Grubbs Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact David W. Shepard is President of Loreda Development, Inc., which has developed Lake Suzy Estates on approximately 160 acres in the southwestern portion of DeSoto County, bordered by Kings Highway. Lake Suzy includes approximately 245 single family lots, 100 of which are sold, with a 42 acre man-made lake. High density and commercial areas are also designated within Lake Suzy. Development of Lake Suzy began in 1972 and is still underway. There are approximately 2 1/2 to 3 miles of asphalt-top roads within Lake Suzy. Construction of these roads began in 1974 and was completed in 1984. On or about September 26, 1985, Petitioner issued a Notice to Show Cause charging that, "Respondent has failed to construct the completed roads and drainage improvements in accordance with DeSoto County specifications, in violation of Section 498.033(2), F.S." The County Engineer for DeSoto County, George Solana, testified that roads and drainage improvements within Lake Suzy do not meet DeSoto County specifications, and Eugene E. Waldron, Jr., County Administrator, testified that the county has not accepted the roads or drainage improvements in Lake Susy for maintenance. In September, 1982, Shepard met with Solana and was informed of several conditions he had to meet to bring Lake Suzy's roads and drainage improvements into conformance with county specifications. Shepard then applied for a permit on September 16, 1982, which was issued on November 1, 1982, subject to conditions enumerated by Solana in a letter dated September 8, 1982. In March, 1985, Solana reviewed the roads and drainage improvements in Lake Suzy and found that most of the deficiencies and conditions noted in 1982 remained. Solana categorized these remaining deficiencies in a letter to the County Administrator, Waldron, dated March 28, 1985 and revised April 5, 1985, as follows: Drainage easements Cross-sections Materials and quality control Existing construction Inlet grates and steel end sections Street and traffic control signs Grassing Certificate of satisfactory completion Other deficiencies At the time of the hearing on February 20, 1986, only the drainage easement deficiencies had been corrected in accordance with DeSoto County specifications. Shepard testified he was fully aware of Solana's conditions in 1982 and the remaining deficiencies noted in 1985. Further, he had tried to correct the deficiencies and meet these conditions for compliance with DeSoto County specifications. He does not dispute that the deficiencies noted by Solana as still existing in 1985 would have to be corrected to comply with the county public works manual. The Order of Registration for Lake Suzy, issued by Petitioner on June 4, 1973, includes a Public Offering Statement which states that roads will be installed to the specification of DeSoto County and will be maintained by the county. As revised on October 21, 1980, the Public Offering Statement includes the same statement about road improvements in Lake Suzy. Respondent has failed to comply with this provision in its Public Offering Statement.
Recommendation Based upon the foregoing, it is recommended that Petitioner issue a Final Order which requires Respondent to comply with Section 498.033(2), Florida Statutes, within one year by bringing roadways within Lake Suzy into compliance with DeSoto County specifications and by requesting that DeSoto County accept said roads in their road maintenance system, and further providing that failure to comply with said Final Order within the one year period shall result in a one-year suspension of Respondent's registration and a civil penalty in the amount of $10,000. DONE and ENTERED this 14th day of March, 1986, at Tallahassee, Florida. DONALD D. CONN, 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 14th day of March, 1986. COPIES FURNISHED: Thomas L. Barnhart, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 David W. Shepard, President Loreda Development, Inc. 910 Kings Highway Lake Suzy, Florida 33821 James Kearney, Director Division of Florida Land Sales Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 8. 4 Adopted in Finding of Fact 6. 5 Adopted in Finding of Fact 7. 6-7 Accepted although not necessary as a finding of fact. The weight of the evidence supports Petitioner's position after considering all evidence presented by Respondent. 8 Adopted in part in Finding of Fact 1. Rulings on Respondent's Proposed Findings of Fact: 1-3 Rejected after considering all evidence presented. Respondent's position is not based on competent substantial evidence.
The Issue Whether Respondent discriminated against Petitioners in violation of the Florida Fair Housing Act (Florida FHA); and, if so, the relief to which Petitioners are entitled.
Findings Of Fact Sun Lake is an apartment complex located in Lake Mary, Florida. Ms. Pollock is the property manager of Sun Lake, and has been employed in this capacity for approximately seven years. Mr. Green is an African-American male. The brothers leased and resided in an apartment at Sun Lake from 2012 through July 31, 2017. Mr. Green asserted that Jude is disabled, however, no other evidence to support that assertion was provided. Mr. Green alleged that Respondent failed to provide Petitioners accommodations that were requested in December 2016: change their apartment locks to the brothers’ “own private locks”; stop the trash service pick-up to the brothers’ apartment; and establish a community garden within the Sun Lake property. It is undisputed that Respondent ceased the trash service pick-up, but the evidence was insufficient to support whether the apartment locks were or were not changed. There was insufficient evidence to support a finding of fact regarding the establishment of a community garden within the Sun Lake property.5/ Mr. Green suggested a December 2016 police report was fraudulent because a name on the report was incorrect, and he had not filed a police complaint regarding noise above their apartment. The evidence was insufficient to support a finding of fact on this allegation. Mr. Green admitted to withholding rent on several occasions as a method to have the requested accommodations secured. Ms. Pollack confirmed there was a valid lease agreement between Sun Lake and Petitioners. Further, she provided that Respondent did, in fact, stop the trash service pick-up to their apartment as Petitioners requested. Ms. Pollack lacked specific knowledge regarding whether Petitioners’ apartment door locks were changed, but offered that Respondent must maintain an apartment key. This is done in order to secure access to each apartment in a timely manner for health and safety reasons. Respondent’s maintenance staff would not enter any apartment without a specific request for service. Ms. Pollack provided the multiple dates on which Petitioners’ rental payments were late. Petitioners and Respondent became involved in eviction proceedings in circuit court. At some point, Petitioners and Respondent entered a settlement stipulation that Petitioners would vacate their apartment earlier than their lease agreement, and pay the rental fees and other associated fees to Respondent. Following Mr. Green’s testimony, and both the direct and cross-examination testimony of Respondent’s sole witness, Ms. Pollock, Mr. Green moved to dismiss the case. No credible evidence was presented that Respondent discriminated against Petitioners in any fashion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Petitioners’ Petition for Relief in its entirety. DONE AND ENTERED this 21st day of May, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2019.
