The Issue The issues are (1) whether Respondents, Frank H. and Linda M. Molica, dredged and filled wetlands on their property in Merritt Island, Brevard County (County), Florida, without a permit and should take certain corrective actions, and (2) whether Respondents' activities are exempt from permitting under Section 373.406(2), Florida Statutes.1
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In 1990, Respondents purchased a 3.47-acre, rectangular- shaped parcel at 2050 North Tropical Trail, Merritt Island, Florida, which is located within the regulatory jurisdiction of the District. See § 373.069, Fla. Stat. The parcel identification number is 24-36-15-00-00764-00000.00. The property is less than a mile south of State Road 528 (A1A), approximately one-half mile west of State Road 3 (North Courtney Parkway), and around one-half mile east of the Indian River. The property is bounded on its western side by a roadway known as North Tropical Trail, on the south side by a drainage ditch, and on the east side by another drainage ditch. Further to the east of the drainage ditch on the eastern side of the property are a holding pond and a subdivision known as Copperfield Subdivision developed in 1993, while a nursery is located just south of the drainage ditch on the southern side. The northern boundary of the parcel is five hundred twenty feet long and is adjoined by a vacant parcel of land similar in size to the Molica parcel and which is owned by the Lacanos. The Lacano property is largely a wetland. To the north of the Lacano property is a parcel owned by the Stricklands. Historically, the natural flow of water in the area was north to south, that is, from the Stricklands to the Lacanos to the Molica's property, and then to the drainage ditch on the south side of the Molica's property. When Respondents purchased the property in 1990, citrus trees were located "mostly in the front half," or western side of the property, "but they were also located in the rear scattered throughout." There was also "weed grass" or "mini grass" throughout the entire parcel. In 2002 or 2003, the citrus industry was economically hurt by a drop in prices due to various problems, and it became difficult to find fruit pickers or purchasers for the fruit. Because of these conditions, and pursuant to a recommendation by another citrus grower, Respondents state that they began to "transform their property to palm tree production." In late 2003, Respondents began removing orange trees and clearing the land; this continued throughout 2004. At the same time, they began to remove vegetation from the eastern half of the property, which included the excavation of the vegetation, soil, and roots. This was accomplished by the use of heavy equipment, including a tracked cab with hoe, a bobcat with front end loader bucket and root rake, and a wheeled tractor with front end root rake. This is confirmed by photographs taken of the property in April and December 2004. See District Exhibits 8 through 10. Also, a few cabbage palms were removed that were damaged during the clearing process, as well as trees damaged by hurricanes that struck the east coast of Florida in 2004. The vegetation and soil were trucked off-site for disposal, and new soil or fill was placed throughout the eastern half of the property in which vegetation and soil had been excavated. In some cases, the fill measured as high as thirty-three inches but averaged around one foot in height. There is no dispute that dredging (or excavation) and filling on the property occurred. Respondents did not obtain an Environmental Resource Permit (ERP) before performing this work. On December 13, 2004, the County received a complaint (generated by Mrs. Strickland, the neighbor to the north) about "heavy machinery operating in a wetland" on the Molica property. Mr. Pinnick, who was charged with enforcement of County environmental ordinances, visited the subject property to determine whether a violation of an ordinance had occurred. He observed heavy machinery operating on the central and eastern sides of the property and took several photographs of the site. See District Exhibit 12. He also observed vegetation and muck soil in the disturbed area and standing water in the ditch to the south and concluded that wetlands were being impacted. It is fair to infer that he then notified the DEP about the incident. On December 15, 2004, Mr. Pinnick, accompanied by two DEP employees, Mr. West and his supervisor, Ms. Booker, visited the site and met Mr. Molica and his consultant. At that time, "clearing and [dredging and filling] of wetland at rear [or east end] of Molica's property [was observed]." See District Exhibit 49. The DEP requested that Respondents' consultant "flag a [wetland] line and then Molica have all fill within wetland area removed." The DEP also advised Mr. Molica that "[a]rea then needs to be restored to natural grade." Id. Notes taken by Mr. Pinnick confirm that Mr. Molica agreed to remove the fill "to restore the natural grade and the wetland boundary would be delineated [by Mr. Molica's consultant.]" See District Exhibit The conclusion of both the County and DEP was that wetlands were present in the central part of the property. No formal delineation of wetlands was performed by them since the parties reached an understanding that Mr. Molica's consultant would perform this task. Because Mr. Molica thereafter denied access to the property, this would be the last time regulatory personnel were able to make an on-site inspection of the property until October 2008, when the District obtained an Order authorizing them to inspect the property. The County later charged Respondents with violating the County Code ("prohibitions in functional wetlands"), and the matter was considered by a Special Magistrate. An Order of Dismissal was entered by the Special Magistrate on February 1, 2006, on the grounds the property was zoned agriculture and enjoyed an agricultural exemption, and Respondents agreed to use Best Management Practices, as prescribed by the Department of Agriculture and Consumer Affairs. See Respondents' Exhibit 4. However, neither the DEP nor the District was involved in that action, and the matter concerned an alleged violation of a local ordinance, and not a provision in Chapters 373 or 403, Florida Statutes. At some point in time, but presumably after the site visit in December 2004, Mr. Molica asserted to the DEP that he was conducting an agricultural operation. In early 2005, the DEP referred the matter to the District since the two agencies have an operating agreement concerning which agency will handle certain types of permitting and enforcement matters. By letter dated August 15, 2005, Mr. Molica advised the local District office in Palm Bay, Florida, that the owners of the property were engaging in agricultural activities and denied that any unauthorized fill and excavation activities had occurred. He also requested copies of any statutes, rules, or case law that supported the District's position. See Respondents' Exhibit 2A. On August 3, 2007, the District advised Mr. Molica by letter that it had received a complaint from DEP, that the matter had not yet been resolved, and that it wished to inspect his property to determine if unauthorized fill and excavation activities had occurred. See Respondents' Exhibit 2B. According to a District witness, the delay in responding to Mr. Molica's letter was caused by the building boom occurring in 2005 and 2006, which required action on numerous pending permits, and in-house confusion over whether the DEP or District had jurisdiction to handle the complaint. There is no evidence to suggest that at any time the District agreed that the activities were lawful, or that the delay in responding to Mr. Molica's letter prejudiced Respondents in any manner. After conducting a preliminary investigation, which included a review of aerial photographs of the area, wetland maps, and soil maps, a visual inspection taken from the Copperfield Subdivision to the east and North Tropical Trail from the west, and a flyover of the property, the District issued its Complaint on August 8, 2008. Are there wetlands on the property? To determine whether wetlands were present on the Molica property, the District made a site inspection on October 22, 28, 29, and 30, 2008. Besides making a visual inspection of the property, the staff took photographs, performed twenty-nine soil borings on both the Molica and Lacano properties, reviewed soil surveys for the area, completed one west-to-east transect and five north-to-south transects to determine locations of hydric soils and any fill materials, and observed lichen and water stain lines on trees. The locations of the various soil borings are depicted on District Exhibit 22. Finally, the staff examined a series of aerial photographs of the property. Under the wetland delineation rule, three different indicators are used to make that determination: vegetation; soils; and signs of hydrology. See Fla. Admin. Code R. 62- 340.300(2)(a)-(d). In addition, where the vegetation and soil have been altered by man-induced factors so that the boundary between the uplands and wetlands cannot be delineated by use of Rule 62-340.300(2), such a determination shall be made by using the most reliable information and "reasonable scientific judgment." See Fla. Admin. Code R. 62-340.300(3)(a). The parties presented conflicting evidence on the wetland issue; the District's evidence has been accepted as being the more persuasive and credible and supports a finding that the areas where dredging and filling occurred in the eastern and central parts of the property meet the test for a wetland. Wetland Soils Muck presence is a hydric soil indicator and also a wetland indicator. The District's expert, Mr. Richardson, established that the soil on the property where the dredging and filling occurred was hydric in nature, and therefore indicative of a wetland. Although Respondent's soil expert disagreed with this conclusion, he generally agreed with Mr. Richardson's methodology, and he agreed that muck was present below the fill material. Wetland Vegetation The presence or absence of wetland vegetation is another factor to consider in deciding whether an area is or was a wetland. Wetland hardwood trees, and not grass planted on top of the fill, are more appropriate for evaluating whether the area in which the trees are located was a wetland. Large trees, estimated to be fifty to sixty years old, remain on the property in the vicinity of certain District soil borings. They include boring 20 (swamp tupelo); borings 3, 4, and 5 (red maple, American elm, and holly); and borings 9 and 10 (maple and American elm). These are all wetland canopy species and provide further support for the District's position. Hydrologic Indicators Algal matting is found on the surface of the property in the vicinity of borings 3, 4, 5, 8, and 9. Algal matting occurs because water has inundated the surface of the ground sufficiently long for algae to grow in the water and then remains on the ground surface after the water no longer covers the ground. Rainfall alone does not produce algal mats. Trees on the property provided evidence of being in saturated or inundated soil conditions through the morphological adaptation of buttressing and adventitious roots, particularly in the vicinity of District borings 20, 8, 9, and 10. Also, the trees had lichen lines on them, which are indicators of seasonal high water inundation elevations in wetlands. The presence of muck soils is a hydrologic indicator. As noted above, the District determined through soil borings that muck was under the fill that had been placed on the property. Reasonable Scientific Judgment The evidence established that there was significant alteration to the soils and vegetation across the central and eastern parts of the subject property due to man-induced factors of vegetation removal, dredging, and filling. Through consideration of the most reliable information available, including aerial photographs, the remaining trees on the site, hydrologic indicators, the presence of hydric soils, coupled with reasonable scientific judgment, the evidence established that the areas where the recent dredging and filling occurred met the wetland delineation test in Florida Administrative Code Rule 62- 340.300(3). Agricultural Exemption Mr. Molica is a full-time practicing attorney. His wife is his legal secretary. Respondents contend that since they purchased the property in 1990, they have been continuously engaged first in the occupation of citrus farming, and then beginning sometime in 2004 in the production of palm trees. Therefore, they assert they are entitled to the exemption provided under Section 373.406(2), Florida Statutes. That provision states in relevant part that "[n]othing herein . . . shall be construed to affect the right of any person engaged in the occupation of . . . horticulture . . . to alter the topography of any tract of land consistent with the practice of such occupation. However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters." The parties agree that the burden of proving entitlement to this exemption rests on Respondents. When the property was purchased in 1990, there were citrus trees on the land, mainly in the western half. A few navel oranges were later added, and some citrus trees were removed at that time. Beginning at the end of 2003, and continuing in 2004, the citrus trees were removed. At the time of the DEP inspection in December 2004, no potted palm trees were observed on the property. The precise date when they were first placed on the property is not clear. Photographs taken in January 2006, more than a year after the dredging and filling and just before the County code violation charge was resolved, reflect around fifty or so small trees in pots located in a small, cleared section of the property. See Respondents' Exhibit Photographs taken three years later (January 2009), long after the dredging and filling occurred, show a comparable number of small palm trees in pots placed on what appears to be the same part of the property. See Respondents' Exhibit 21. Mr. Molica also submitted numerous documents (dated 2005 and later) downloaded from the internet by his wife which pertain to palm trees, see Respondents' Exhibit 20; and he stated that a marketing plan for the sale of palm trees has been developed, which was simply a goal of selling the trees after they were ten years old. He further stated that he intends to work the "farm" as a business full-time after retiring from his law practice. Finally, he presented the testimony of an agronomist who stated that clearing property, filling holes, smoothing land, and building an access road are normal agriculture activities. It is fair to infer from the record that Respondents' activities can be characterized as an avocation, not an occupation. Notably, there is no evidence that since they purchased the property in 1990, Respondents have sold any citrus fruit or a single palm tree. There is no evidence that dredging and filling in wetlands is a normal agriculture practice, or that it is consistent with the practice of horticulture, including the growing of exotic palm trees. Mr. Molica's agronomist acknowledged that he has never been associated with an application to conduct agricultural or horticultural activities that involve the filling of wetlands. Moreover, extensive dredging, filling, and removal of vegetation were not necessary to accommodate the small area on which the potted plants sit. The more persuasive evidence supports a finding that the topographic alterations on the property are not consistent with the practice of agriculture. The evidence shows that the filling on the property has obstructed the natural flow of surface water. More than likely, the filling of the wetlands was for the predominant purpose of obstructing and diverting surface water that flowed south from the Lacano property, and not for the purpose of enhancing horticultural productivity. Corrective Actions At hearing, the District submitted certain revisions to the proposed corrective action, which are described in District Exhibit 73. The revisions provide greater specificity regarding the formulation of a restoration plan and who must be involved in formulating that plan. In general terms, the corrective action offers Respondents the option of seeking an after-the-fact permit or restoring the wetlands. Respondents offered no proof at hearing that the original or revised corrective action is unreasonable. The revised corrective action is found to be reasonable and designed to address the restoration needs of the property and is hereby approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining the charges in the Complaint, requiring Respondents to take the corrective actions described in District Exhibit 73, and determining that Respondents are not entitled to an agricultural exemption under Section 373.406(2), Florida Statutes. DONE AND RECOMMENDED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 12th day of June, 2009.
The Issue Whether Respondent Neal Colley should be issued a permit to fill certain wetlands located within the regulatory jurisdiction of the Department of Environmental Regulation.
Findings Of Fact The Department of Environmental Regulation is the agency with regulatory jurisdiction over the subject matter of this case, pursuant to Chapter 403, Part VIII, Florida Statutes, and related administrative rules. On or about October 19, 1989, Neal Colley (hereinafter "Colley") filed his Permit Application No. 571717171 with the Department of Environmental Regulation (hereinafter "DER") seeking a permit to fill wetlands located within the regulatory jurisdiction of the Department. Colley's application was related to a residential development identified as the Deer Point subdivision located in Gulf Breeze, Florida. As proposed in the application, the subdivision would contain 0.91 acres of fill in jurisdictional wetlands, 31 buildable lots and a 31 slip marina. The site of the development is adjacent to Pensacola Bay and Santa Rosa Sound, Class III waters. In February, 1990, Colley modified the application by deleting the proposed marina. Colley also proposed to fill on an additional 14 lots, bringing the total of jurisdictional wetlands fill to 2.8 acres. On July 6, 1990, subsequent to review of the application, the DER published notice of it's intent to deny Colley's application. The DER based the action on Colley's failure to provide reasonable assurances that the project would not result in significant wetlands habitat loss and water quality degradation. Colley filed a request for administrative hearing challenging the intent to deny the application. 1/ Thereafter, Colley and the DER discussed several amendments to the application directed at meeting the DER's objections to the original application. On or about August 20, 1990, Colley modified the proposed development by reducing the total number of lots to 31 and reducing the fill required. Colley further agreed to other conditions designed to otherwise mitigate the apparent adverse impacts of the project. In determining the acceptability of a mitigation proposal, the DER weighs the proposal and assigns "credit" for the mitigation proposal which provides a quantifiable method of evaluating a mitigation proposal. For example assignment of a 1 to 1 ratio indicates that there must be one acre of "mitigation" for every one acre of fill. In this case, the combined mitigation credit would allow the filling of 2.16 acres of fill. In his mitigation proposal, Colley reduced the amount of fill for which permission is sought to 2.14 acres in jurisdictional wetlands. This is the minimum which will provide Colley with an economically acceptable number of buildable lots. As onsite mitigation, Colley agreed to convey 29.2 acres of high quality wetlands adjacent to the existing public "Shoreline Park" to the City of Gulf Breeze for preservation as an additional public park. Of the 29 acres, 9 are jurisdictional wetlands which the DER assigned a mitigation ratio of 70 to The remaining 20 wetlands acres were assigned a mitigation ratio of 50 to 1. The application of the mitigation ratios to the 29 acres results in credit of .50 acres of fill. Colley also agreed to offsite mitigation in the form of preservation of 46 acres of high quality jurisdictional wetlands at Innerarity Island, to be conveyed by Colley to the University of West Florida. The DER assigned a mitigation ratio of 100 to 1, resulting in a credit of .46 acres of fill. Colley further agreed to onsite creation of 1.47 acres of marsh. The marsh creation plan provides for scraping down the land surface between two existing wetlands areas and planting the scraped surface with wetlands vegetation consistent with the vegetation found in the existing wetlands. Based upon the location of the wetlands creation and the availability of suitable vegetation for transplantation, there is a substantial likelihood that the created wetlands will function successfully. The DER assigned a mitigation ratio of 1.25 to 1, resulting in a credit of 1.2 acres of fill. The DER staff, both locally and in Tallahassee, reviewed the amended project and determined that the proposal, as amended, was acceptable under the DER's standards. The DER gave notice of it's intent to issue the permit for the amended project proposal. The greater weight of evidence establishes that the amended project will not violate water quality standards. In the short term construction phase, the permit requires sequencing of construction and use of hay bales and other turbidity screens to prevent discharge of runoff into the adjacent wetlands. In the longer term, post-construction phase, the project utilizes a system of retaining walls and buffer swales which are designed to prevent direct discharge of stormwater into the wetlands areas. The project permit requires utilization of best management practices and design standards which should operate to prevent violation of water quality standards. The greater weight of evidence establishes that the amended Colley project is not contrary to public interest. The preservation of a total of 75 acres of high quality wetlands by conveyances to the City of Gulf Breeze and the University of West Florida eliminates further development pressure in the parcels, and is clearly in the public interest. The evidence fails to establish that the project will adversely affect the public health, safety, or welfare or the property of others. There is no evidence that the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitat or that the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The biological impacts of the amended project are minimal. There is no evidence that endangered or threatened species habitat in the area. There was anecdotal testimony related to adverse impacts on fishing allegedly resulting from other development. However, the evidence is insufficient to establish that this project will adversely affect fishing. There is sporadic water exchange between the surrounding bays and the interior wetlands, likely caused by periods of high rainfall which result in outflows of water from the wetlands into the bays. Water flowing from the bays to the wetlands may occur on occasion, however, water salinity samples taken immediately prior to the hearing showed, at most, minimal salinity in the wetlands. The types of vegetation and marine organisms within the wetlands are more common to fresh water areas than to salt water marsh. There is no evidence that the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The permanent nature of the project and the wetlands preservation conveyances provide a public benefit and are in accordance with the mitigation criteria. The existing wetlands to be preserved are acknowledged to be of high quality. Considering the site and existing vegetation adjacent to the location of the proposed 1.47 acres of created wetlands, the probability for success of the created wetlands area is substantial. It is highly likely that the created wetlands will provide the same conditions and functional values as the impacted wetlands. There is no evidence that the project will adversely affect or will enhance significant historical and archaeological resources. The evidence establishes that the adverse impacts which led to the DER's original determination not to permit the project, are either eliminated by the modification of the project or are offset by the mitigation plan which is part of the modified project. As to the cumulative impacts of the project, the onsite preservation proposal results in providing permanent protection for a 29 acre wetlands parcel which could otherwise be permitted for development. Outside this project, including the 29 acre wetlands mitigation area, there are few undeveloped lots remaining in the Deer Point area which contain jurisdictional wetlands. Prior to development on these lots, permits would be required. The lots would be required, on a case-by-case basis, to meet dredge and fill standards, and could be required to mitigate adverse impacts if such exist. The evidence establishes that the Colley project adequately mitigates any cumulative impact directly or indirectly related to this project. At hearing, the Petitioner failed to testify or otherwise offer evidence that would support a finding that Petitioner is substantially affected by the DER's proposed issuance of the permit for Colley's Deer Point Subdivision.
Recommendation Based on the foregoing, it is hereby recommended that the Department of Environmental Regulation enter a Final Order dismissing the petition of Linda L. Young and granting permit number 571717171 to Neal Colley. RECOMMENDED this 10th day of May, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1991.
Findings Of Fact The site of the revetment that is the subject of this litigation is located near the northerly coast of Pine Island in Charlotte Harbor. The property fronts on Pine Island Sound which is inside the barrier islands westward of Pine Island. Pine Island Sound is as an Outstanding Florida Water and Charlotte Harbor at this location is classified as Class II waters. Petitioner's property abuts the property owned by Meister Development Group. On Petitioner's property is located a two-story residence and two rental units. On Meister's property a four unit residential development has been erected. Sometime around 1970 a vertical seawall was erected to protect both Petitioner's property and Respondent's property. Since that time the beach has accreted to the point that by 1989 the sand beach extended an average of approximately twenty-five feet seaward of the seawall in front of Petitioner's property. However, this seawall ended near the middle of Respondents property and erosion of the beach became serious at the four unit residential development building located thereon in 1984. In 1984 the beach at this location had eroded to the point that the high water mark had passed the northern most portion of the building foundation and was threatening to undermine the structure. At this time this shoreline was devoid of aquatic vegetation. Meister employed an engineering firm to prepare a solution to the erosion problem. That firm concluded a revetment was needed and the application for the dredge and fill permit that is here contested was filed in July 1984. Since the application involved use of land seaward of the mean high water, permission of the Department of Natural Resources (DNR) was required before the application could receive final approval. To obtain the approval of DNR Meister agreed to provide a conservation easement to DNR and a public easement to allow the public access to cross the property seaward of the residential development. Additionally Meister conferred with Outstanding Florida Water Group to obtain their acquiescence to the project and agreed to provide navigational aids to mark the Jug Creek Channel across form the Meister property. Before a dredge and fill permit can be granted involving an Outstanding Florida Water the applicant must show the project to be in the public interest. In consulting with DER the applicant proposed a sloping revetment which is generally considered to better tolerate wave action than does a vertical wall. To enhance the public interest concept the applicant agreed to place toe stones at the foot of the revetment and plant mangroves. The toe stones would serve to hold sand in which the mangroves could grow and serve as a habitat for aquatic organisms. The applicant also agreed to place an artificial reef of rocks on the sand shoal which sits about one half mile north of applicant's and petitioner's property. Although the mangroves planted did not survive due to heavy wave action and the permit did not require survivability of these mangroves, at the hearing Meister agreed to a provision in the permit's next renewal that will include a requirement that a percentage of these mangroves planted in the toe stones survive. Landward of the residential development is a stormwater retention area that serves to keep contaminants out Pine Islands Sound. The erosion of the beach at the Meister property was threatening to extend further inland and allow contaminants to leach from the water retention area into Pine Island Sound and contaminate that body of water. Approval of the project would serve to remove that threat and be in the public interest. Finally consideration was given to the fact that the foundation of the condominium was being threatened which affected the dwelling of the residents. Protecting these residences is also considered to be in the public interest. The project was completed during a two weeks period in August 1986. The revetment generally takes off in the same line as the Vertical seawall on petitioner's property and is basically convex to fit the existing building and meet the zoning setback requirement of twenty-five feet from the building. To construct the revetment the existing vertical seawall on Meister's Property had to be removed. During construction turbidity screens were installed and construction was restricted to periods of low water to reduce turbidity. Any excess turbidity caused by the construction would settle out within twenty-four hours. Dr. O'Malley left Pine Island in March and returned in October 1986. At the time he left the beach in front of his seawall extended an average of twenty-five feet from the seawall. When he returned in October the revetment had been completed and approximately fifty-percent of Petitioner's beach had eroded. In October 1986 the beach on O'Malley's property extended two to twenty feet from the seawall. O'Malley was aware that prior to his departure the Meister property had suffered severe erosion. Believing that the construction of the revetment was the cause of the erosion of his beach Petitioner instituted this action. This was the only issue seriously contested. Petitioner's expert witness opined that the revetment acted like a groin east of Petitioner's property and caused a littoral drift, which is basically from east to west in this area, to take the sand from Petitioner's property. Further this witness opined that the longer fetch (area of open water to the north-east of Meister property) was the primary cause of the erosion of the Meister property. Historically beaches erode and accrete. Gentle waves have the tendency to cause accretion while storm waves result in seaward migration of beach sand. Photographs (exhibit 3) of Petitioner's property show typically storm wave generated erosion. The expert opinion of Respondents' witnesses that the erosion of Petitioner's property was caused by storm driven waves and was not caused by the revetment is deemed the more credible explanation of the erosion of Petitioner's beach.
Findings Of Fact Introduction Respondent, South Florida Water Management District (SFWMD or District), is a creature of the legislature having been created under Chapter 373, Florida Statutes (1985). It has jurisdiction over and administers all "waters in the District", including the regulation of the management and storage of surface waters. According to the map depicted in Rule 40E-1.103, Florida Administrative Code, the SFWMD's jurisdiction appears to extend over all of Monroe, Dade, Broward, Collier, Palm Beach, Martin, Lee, Hendry and Glades Counties and portions of St. Lucie, Okeechobee, Osceola, Charlotte and Orange Counties, Florida. A precise legal description of its boundaries is found in Subsection 373.069(2)(e), Florida Statutes (1985). Under the District's surface water management permitting authority, a permit is required for the construction of any works that impound, impede, obstruct or otherwise impact the flow of water, irrespective of whether the property contains a wetland of any nature. To implement the above jurisdiction, the District has adopted by reference in Rule 40E-4.091(1)(a), Florida Administrative Code, a technical manual entitled "Basis of Review for Surface Water Management Permit Application within the South Florida Water Management District" (Basis for Review). The manual was first adopted in 1977 and has been readopted with various modifications since that time. The most recent version became effective in July 1986. The manual contains criteria to be used by the District when reviewing permit applications for the construction and operation of surface water management systems within its jurisdictional boundaries. These criteria specify the manner in which an applicant must provide reasonable assurance that a project meets SFWMD objectives, and include both water quantity and quality considerations as well as environmental standards designed to protect fish and wildlife. One feature of the Basis of Review is a provision allowing an applicant to submit and implement innovative project designs as long as they meet District objectives. Many of the principles embodied in the Basis of Review have been carried forward into the challenged rules. An applicant may apply for a conceptual approval or a construction and operation (C&O) permit. The conceptual approval is a permit for a master plan when the applicant is not ready to submit all detailed drawings necessary to obtain a C&O permit. It is especially appropriate for large projects developed in phases. A conceptual approval does not authorize construction of a surface water management system, but rather authorizes a master plan with which subsequent construction and operation must be consistent. Once a conceptual permit has been issued, the individual C&O permits are then applied for and issued consistent with the terms of the conceptual permit. In 1986 the Legislature enacted Section 373.414, Florida Statutes (Supp. 1986). That section requires the District, not later than March 31, 1987, to "adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department (of environmental regulation) for purposes of regulation of dredging and filling." The statute goes on to require that the rule include the following: One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that shows the fish and wildlife values of such areas to be minimal; Criteria for review of fish and wildlife and their habitats for isolated wetlands larger than the minimum size; Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use; and Provisions for consideration of the cumulative and offsite impacts of a project or projects. The statute further provides that until the District adopts specific isolated wetland rules, its review of fish and wildlife impacts in small isolated wetlands is limited to: Wetlands that are 5 acres in size or larger; or Wetlands that are used by a federal or state designated threatened or endangered species; or Wetlands located within an area of critical state concern designated pursuant to chapter 380; or Wetlands that are less than 5 acres in size having a cumulative total acreage greater than 30 percent of the total acreage proposed for development, within a development project greater than 40 acres in size. In response to the foregoing legislation, and after a series of meetings and workshops, on November 7, 1986 the District proposed to amend existing Rules 40E-4.091 and 40E- 4.301, Florida Administrative Code. The text of the amended portion of Rule 40E-4.301 reads as follows: 40E-4.301 Conditions for Issuance of Permits. (1)(m) is not against public policy, and will meet the general and specific criteria in the document described in Rule 40E-4.091(1)(a), and will meet the criteria for isolated wetlands, which are found in Appendix 7 of the document described in Rule 40E-4.091(1)(a) (Underscored words represent the proposed amendment.) In conjunction with the foregoing, the District prepared an economic impact statement (EIS) which read as follows: SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT OF THE RULE: 1. COST TO THE AGENCY: The proposed rule largely reflects existing policy and procedure but enunciates the specific guidelines the District applies in permitting decisions. The rule strikes a balance between specific quantitative guidelines and administrative flexibility with regard to permitting decisions. While there may be some initial implementation costs to the District, a minimal total cost increase to the agency is expected. The specific quantitative guidelines provided in the Appendix are expected to facilitate agency decisions regarding required mitigation- compensation, so that in the long run costs may actually decline as a result of implementation of the new criteria. There are no plans to change the size of District regulatory staff as a result of implementation of the standards in Appendix To the extend that additional staff is required in the future to address the impacts of permitting decisions on wetland habitat on threatened and endangered species, this impact can more correctly be attributed to the adoption of Section 373.414, F.S., by the Florida Legislature than to this rule. COSTS AND BENEFITS TO THOSE DIRECTLY AFFECTED: Appendix 7 provides the applicant with the choice of either meeting specific quantitative project design criteria or proposing a unique project design which will be reviewed by a qualitative standard to ensure that the proposed project complies with the District's objective of protecting isolated wetlands and their associated fish and wildlife functions and values. The requirements that project applications which proposed to impact wetlands provide reasonable assurances, such as mitigation/compensation, maintenance plans, monitoring and a guarantee of performance, is expected to result in some cost increases to permittees. Such require- ments are likely to improve the effectiveness of District protecting the water and related land resources of the District. IMPACT ON COMPETITION AND THE OPEN MARKET FOR EMPLOYMENT: No significant impact on competition and the open market for employment is expected. IMPACTS ON SMALL BUSINESS: The quantitative criteria in the Appendix set differential standards on the basis of isolated wetland size rather than firm size. Large projects are expected to have slightly greater flexibility in meeting the reasonable assurance requirements than small projects; however, the differential impact on small business, as defined in Section 288.703, Florida Statutes, is not expected to be significant. DATA AND METHODS USED: Data from the computer files of the District's Resource Control Department were the primary source of data used. Appendix 7 adopted by reference in amended Rule 40E- 4.301(1)(o) is a document entitled "Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District - Appendix 7 - Isolated Wetlands" (Appendix 7). As originally proposed for adoption, the Appendix contained sections 1.0 through 6.0 covering the following subjects: introduction (1.0), glossary (numbered as 2.0 and containing sections 2.1, 2.2, 2.3, 2.4, 2.7., 2.9 and 2.10), size threshold (3.0), review procedures for projects which propose to impact isolated wetlands (numbered as 4.0 and containing sections 4.1-4.5), review criteria (5.0), quantitative design criteria (5.1.1., 5.1.2., 5.1.3, 5.1.4, 5.1.5, 5.1.7 and 5.1.8), qualitative criteria (5.2-5.2.3) and project guarantee criteria (numbered as 6.0 and containing sections 6.1-6.3). For purposes of surface water management permitting, Appendix 7 applies only to activities in isolated wetlands while all other activities are subject to the criteria embodied in the Basis of Review. On November 26, 1986 petitioners, Orlando Central Park, Inc. (OCP), Real Estate Corporation of Florida, N.V. (REC), and National Association of Industrial and Office Parks, Region IV (NAIOP), filed a Petition for Administrative Determination of Invalidity of Proposed Rules wherein they sought to have declared invalid proposed rules 40E-4.091(1) and 40E-4.301(1)(o). In their petition, petitioners generally challenged all or portions of sections 2.0, 3.0, 4.0, 5.0, 5.1., 5.2 and 6.0-6.4 in Appendix 7 as well as the sufficiency of the EIS. In light of the above petition having been filed, the District again considered its proposed rules on January 8, 1987 and amended Appendix 7 in a number of respects. The revised Appendix has been received in evidence as joint exhibit number 2. As a result of those revisions, and as reflected in their post- hearing pleadings, petitioners have limited their attack to sections 2.2, 4.2b, 4.3, 4.4, 5.1.1a, 5.1.1b, 5.1.1d, 5.1.2, 5.1.3 and 5.1.7 in Appendix 7 and the adequacy of the EIS. On January 15, 1987 intervenor/respondent, The Florida Audubon Society (intervenor or FAS), filed a petition to intervene. This petition was granted conditioned upon intervenor proving up at final hearing its standing in the proceeding. Standing In order to challenge a proposed rule, a party must generally demonstrate that its substantial interests will be affected by the challenged rule. To do so, petitioners presented evidence on this issue at final hearing. In the same vein, the standing of intervenor was also questioned, and it too presented evidence to demonstrate its right to have access to this proceeding. REC - REC is the owner and developer of a residential and commercial development consisting of approximately 2,400 acres known as the Buenaventura Lakes Planned Unit Development between Kissimmee and St. Cloud in Osceola County. The project has been subdivided into what is known as Basins 1, 2 and 3, of which the undeveloped acreage lies within the latter Basin. The corporation has plans to develop the remaining acreage into single family and multi-family residential and commercial developments but has not yet obtained the necessary environmental permits for the undeveloped tract. Through the testimony of an REC representative, the undeveloped acreage was described as having open grasslands, wooded areas and low, marshy areas. Some portions of the land were also described as a "wet, marshy, boggy area." However, their specific size was not disclosed, and there was only conjecture on the part of petitioners' expert that the areas were in fact isolated wetlands as defined in the proposed rule. The representative fears that if jurisdictional isolated wetlands are located within Basin 3, and the rules are adopted, it will impact upon REC in that more restrictive permits will be required prior to any further development of the land. The District has previously issued construction and operation permits for Basins 1 and 2 and necessary Department of Environmental Regulation (DER) permits have also been obtained. None have been sought or issued for Basin 3, and there was no evidence that a letter of conceptual approval covering drainage in Basin 3 has been issued by the District. Had one been issued, the project might be grandfathered and exempt from the pending rules. Even so, the record does not support a finding that isolated wetlands as defined in the proposed rule are definitely located within Basin 3 so as to make REC's substantial interest affected by this proceeding. NAIOP - The NAIOP is a national non-profit organization of developers, consisting of some 6,000 members nationwide. In Florida, it has four chapters (Jacksonville, Fort Lauderdale, Orlando and Tampa) and "several hundred" members. As developers of office, industrial and commercial real estate, it is necessary that its members obtain permits from the District on certain projects within the District's jurisdiction. The association monitors all rulemaking proceedings affecting its members, and has actively lobbied the legislature on environmental matters. It has appeared before the District and DER concerning rules and policy, especially those that affect the permitting process. According to an NAIOP representative, Eric B. Eicher, approximately 30 percent of its state members do business in SFWMD jurisdictional territory. However, Eicher had no first-hand knowledge as to how many members owned property within the District, or whether any members are intending to develop isolated wetlands which would be subject to the proposed rule. Indeed, he admitted that only two members had even talked to him about the proposed rules. As such, the NAIOP has not demonstrated any immediate and discernible impact that the proposed rule would have on its members. OCP - The OCP is a wholly-owned subsidiary of Martin-Marietta Corporation, a large corporation with offices in the Orlando area. However, Martin-Marietta is not a party in this proceeding. OCP itself is the owner and developer of an office, industrial and commercial park known as Orlando Center Park in Orange County, Florida. In addition, OCP acts as the developer of certain properties owned by Martin-Marietta. At the present time, OCP has approximately 2,400 acres in its own name which it intends to develop. They are generally located in an area west of the Florida Turnpike, south of Sand Lake Road, north of the Beeline Expressway and east of 1-4. Various aerial photographs and maps of the area were received in evidence as petitioners' exhibits 5, 8 and 9. It is undisputed that this property lies within the territorial jurisdiction of the SFWMD. On November 17, 1977 the District issued a permit granting conceptual approval of a master plan for the development of certain properties owned by OCP. However, the permit itself (petitioners' exhibit 15) did not include a review of impacts on wetlands for OCP's property. Therefore, the project is not grandfathered under proposed rule 4.1, and is subject to the new rules. If the proposed rules are adopted, OCP would have to modify its master plan and reduce the amount of its sellable or developable property. In two jurisdictional determinations performed by DER in 1983 and 1984, DER identified various isolated wetlands on OCP's property not subject to DER jurisdiction. These are located on what are identified as phases 8-B and 9 of the undeveloped tract of land (petitioners' exhibits 8 and 13). Since it is undisputed that OCP intends to develop this land, OCP is substantially affected by the proposed rules. FAS - Intervenor, which supports the rule amendments, is a non-profit association with principal headquarters in Maitland, Florida. Its membership numbers some 30,000, of which a large part live in Southeastern Florida and within the territorial jurisdiction of SFWMD. Although only one member (its president) testified at final hearing, it was the president's contention that "most" of its members support the proposed rules and the perpetuation of the isolated wetland as a function for wildlife. Through documentation offered in evidence as intervenor/respondent's exhibit 1, it was established that FAS owns various tracts of undeveloped land in Lee, St. Lucie and Collier Counties, which lie within SFWMD's boundaries. A part of these lands are isolated wetlands, and other parts are adjacent to wetlands areas. Although FAS expressed a fear that adjacent wetlands may be developed if the proposed rules are invalidated, it offered no proof of impending developments on isolated wetlands, or that such development would occur on properties adjacent to its own. Therefore, any adverse impact is remote and speculative, and has no immediacy or reality. The FAS has entered into a contract with the Game and Fresh Water Fish Commission to administer the Florida Breeding Bird Atlas Program. Under the program, FAS has contracted to establish a baseline of the numbers and types of breeding birds in the State. The FAS fears that if the rule amendments are not adopted, the destruction of wetlands will occur, thereby interfering with its ability to carry out the contract. Again, however, it offered no proof of impending developments on adjacent isolated wetlands, or otherwise established that its substantial interests under the contract would be affected. Economic Impact Statement Other than the introduction of the EIS into evidence as joint exhibit 4, there was no relevant factual evidence presented by the parties concerning the insufficiency or inaccuracy of the EIS. It is noted, however, that the District merely estimated that the proposed rules would "result in some cost increases to the permittees", and did not attempt to precisely identify the economic impact. Respondent offered into evidence various documents upon which it relied in preparing the EIS. However, such documents are hearsay, and it was not shown what competent evidence, if any, they were intended to supplement and explain. The Challenged Rules Petitioners' real concern lies with portions of Appendix 7 which has been adopted and incorporated by reference by Rule 40E-4.301(1)(o), Florida Administrative Code. That document spells out in detail the criteria that will apply to applications for surface water management permits where the proposed activity affects isolated wetlands. As noted earlier, the Appendix is divided into a number of sections, which for ease of discussion will be referred to as "rules." Each challenged "rule" will be dealt with separately. Rule 2.2 - This rule defines an "isolated wetland" as follows: Any wetland not under the jurisdiction of the Department of Environmental Regulation (DER) for the purposes of regulation of dredging and filling. Multiple individual wetlands normally connected by surface flow during a wet season with average rainfall shall be presumed to be an isolated wetland. The first sentence of the rule simply provides that any wetland not subject to DER dredge and fill jurisdiction is to be considered an isolated wetland and subject to Appendix 7 criteria. Conversely, if a wetland is subject to DER jurisdiction, any District regulated activity affecting that land must be considered under the existing Basis of Review criteria. Petitioners' concern is with the second sentence of the rule and is that whenever multiple isolated wetlands are connected by surface flow during the wet season, they believe the rule would confer jurisdiction in SFWMD not only over the isolated wetlands themselves, but also the uplands that lie adjacent to and between the individual wetlands. But, through credible and persuasive testimony, it was established that this is not the intent or result of the proposed amendment. Indeed, it was established that jurisdiction is intended to lie only over the wetlands themselves, and not the connecting uplands. Petitioners also object to the District aggregating small isolated wetlands into a single larger isolated wetland for jurisdictional purposes. However, such aggregation is necessary because of the biological interaction between the small wetlands. Petitioners further voiced some criticism of the provision in the rule that connected wetlands shall be presumed to be an isolated wetland. Even so, the rule allows an applicant to present evidence to contradict this presumption. Finally, despite suggestions to the contrary, there was no evidence of any conflicting DER policy or concept regarding isolated wetlands, how such wetlands are defined by DER, or that DER prefers the District to follow such policy or definition. Rule 4.2b. - This rule prescribes certain information that must be filed by an applicant for a permit whenever the project impacts isolated wetlands. As is pertinent here, Section b. requires the following to be filed with the application: b. A list of all plant and animal species listed as endangered, threatened or of special concern pursuant to 50 Code of Federal Regulations, Section 17.12, and Rules 39-27.03, 39-27.04 and 39-27.05, Florida Administrative Code, which are incorporated by reference and made a part of this rule which utilize the area and an evaluation of the probable significance of the area to the listed species. Petitioners object to the requirement that an applicant submit a list of all plant species of special concern as defined by Rule 39-27.05, Florida Administrative Code. This rule was promulgated by the Game and Fresh Water Fish Commission and designates some forty-three plant "species of special concern". Petitioners' objection is based on the premise that the term "species" does not include plants, and that plant species are accordingly outside the purview of the District's permitting authority. However, they presented no evidence to support this construction of the term. In contrast, through testimony from a National Audubon Society employee, it was established that the term "species" not only includes animals, but plants as well. Mitigation/Compensation Rules - A number of rules within Appendix 7 make reference to mitigation and compensation proposals to be submitted by applicants whose projects impact isolated wetlands. As is relevant here, they include rules 4.3, 4.4, 5.1.1a., b. and d., 5.1.2, 5.1.3 and 5.1.7, all challenged by petitioners. These rules generally require or provide for mitigation when an applicant intends to impact or destroy all non-exempt isolated wetlands 0.5 acre to 5.0 acres in size. It is petitioners' contention that the District has no authority to require or otherwise provide for mitigation or compensation as a permit criterion. Mitigation is defined in rule 2.8 as "remedying isolated wetland impacts by restoring or enhancing affected habitat, or by creating similar habitat of equal or greater function". Compensation is defined in rule 2.9 as the "replacement of isolated wetlands with a mixture of wetland/upland habitat, unique upland habitat, or otherwise provide overall benefits to the natural system". Mitigation is a common practice in environmental permitting and has been routinely used by the District in its existing Basis for Review. Indeed, at the present time ``most'' applicants include a mitigation plan with their applications for permits. Even petitioners' expert conceded that the use of mitigation is "a reasonable practice" and has resulted in "better projects", and "better" protection of the water resources. Rules 4.3 and 4.4 require applicants who propose mitigation or compensation to submit certain information with their applications. This information is necessary to insure that the mitigation/compensation plan will be successful. It is also noted that mitigation is not used or required for every project, and can be avoided where a project has other built-in compensation features. The new rules simply continue existing agency policy. Rules 5.1.1a. and b. provide the following presumptions concerning mitigation and compensation: Mitigation or compensation for elimination of isolated wetlands between 0.5 and 5.0 acres in size, pursuant to Section 5.1.2 below, shall be presumed to maintain wetland functions. There is no presumption that the function of isolated wetlands over 5.0 acres in size can be maintained by measures other than protection as defined in Section 2.4 above. Protection of isolated wetlands over 5.0 acres in size shall be the preferred method of providing the required reasonable assurance, however, other reasonable alternatives proposed by the applicant will be considered. Section a. creates a presumption in favor of the applicant that mitigation or compensation, in ratios specified within the rules, shall be presumed to maintain the functions of isolated wetlands between .5 and 5 acres in size. Section b. eliminates this presumption for isolated wetlands over five acres in size since the District's experience has been that applicants have not generally been successful in mitigating larger wetlands, and that it is more difficult to mitigate and compensate for larger projects. Even so, the rule allows an applicant to present "other reasonable alternatives" to mitigation. Petitioners object to the presumption in Section b. since they contend it reposes in the District the authority to preserve isolated wetlands over 5.0 acres in size. However, this "authority" comes into play only when the criteria cannot be met, and the applicant fails to present "other reasonable alternatives". Rule 5.1.1d. provides as follows: (d) Protection of isolated wetlands or incorporation of isolated wetlands into surface water management systems in favored over isolated wetland destruction and mitigation or compensation. Wetland destruction and mitigation or compensation shall be considered only when there are no feasible project design alternatives for the particular site. Reasonable project design alternatives to isolated wetland impacts shall be considered. This rule essentially favors the protection of isolated wetlands as opposed to their destruction. It goes on to permit destruction and mitigation/compensation whenever there are no "feasible project design alternatives". In other words, the District has established a first priority of preserving wetlands whenever possible, and allowing destruction only when no "reasonable project design alternatives" are available. Under the latter situation, mitigation/compensation will then be required. Petitioners assert the term "feasible project design alternative" is not readily understood, or comprehensible to the average person. However, even their engineer stated he could "apply it", and that he "normally" goes about designing projects consistent with the terms of the rule. It was further established that the District construes the terms "feasible" and "reasonable" to be synonymous, and that the rule would not require an applicant to present a proposal that was prohibitively expensive, or technically unfeasible. Rule 5.1.2 also deals with mitigation/compensation and addresses mitigation ratios to be used by applicants. It reads as follows: Isolated wetland mitigation shall be implemented based upon ratios of acres wet- lands created, or restored to acres of wet- lands destroyed which provide reasonable assurance that the mitigation will be successful. The following ratios shall be presumed to provide such reasonable assurance for type-for-type mitigation: Forested swamp, non-cypress dominated-2. 5:1 Forested swamp, cypress dominated---2.0:1 Freshwater marshes 1.5:1 Ratios for mitigation with unlike habitat, including expanded littoral zones, or compen- sation shall be determined on a case-by-case basis. When type-for-type mitigation is provided as defined in Section 2.8 and accepted by the District prior to isolated wetland impacts, a one-to-one ratio shall be presumed to provide such reasonable assurance. The rule explains that the prescribed mitigation ratios provide reasonable assurance that the creation or restoration will be successful. It is a natural corollary to the District's mitigation/compensation policy. Testimony established that these ratios were reasonable, favor an applicant, and are consistent with the different natural communities to which they apply. Higher ratios of wetlands created to wetlands destroyed are necessary because of the time required for an artificially created replacement system to provide all of the previous native functions. Finally, the use of a one-to-one ratio when type-for- type mitigation is used reduces the amount of land required by an applicant for mitigation, and provides flexibility from the otherwise specified ratios. Rule 5.1.3 prescribes the use of mitigation/compen-sation where disturbed wetlands are impacted by a project. It reads as follows: Disturbed isolated wetlands may be developed and their loss compensated for by: Mitigation at ratios less than those required in 5.1.2, based on the degree of disturbance and the remaining functional qualities. Mitigation through restoration or other disturbed wetlands is preferred over wetland creation. Preservation of unique uplands or in- clusion of developable uplands within an up- land/wetland protected system. Mitigation or compensation shall not be required for isolated wetlands which do not provide fun- ctions and values as expressed above in Sections 1.0 and 5.0. Unlike rule 5.1.2., this rule provides for mitigation ratios based upon the degree of disturbance and the remaining functional qualities of the wetland. It is too is a natural corollary of the District's stated policy. It recognizes that some wetlands have been disturbed, and that the ratios prescribed in rule 5.1.2. are inappropriate and too rigid for a previously disturbed wetland. Rule 5.1.7 - The final rule challenged by petitioners provides for the establishment of "buffer zones" under certain conditions. It is petitioners' contention that, like many of the other cited rules, the District has no authority to adopt the rule because buffer zones in upland areas are not a part of the surface water management system. A buffer zone is defined in rule 2.7 as "an area adjacent to the isolated wetland which protects wetland function and minimizes adverse impacts of upland development on wetland function". The challenged rule reads as follows: Buffer zones may be required around all isolated wetlands that are to be protected or incorporated into a surface water management system to protect wetland function and mini- mize adverse impacts of upland development on wetland function. Actual delineation of the buffer zone may vary according to site specific conditions. Buffer zones which extends (sic) at least fifteen feet landward from the edge of the wetland in all places and averages twenty-five feet from the landward edge of the wetland will be presumed to be adequate. Prior to issuance of Construction and Operation permits, buffer zones shall be field verified and delineated in the field. Buffer zones may consist of undisturbed uplands, open water bodies, wildlife corr- idors or other natural or structural features which serve the purpose stated in Section 2.7 as appropriate for the particular site. Upland areas or wildlife corridors adja- cent to buffer zones may be incorporated as compensation areas, provided they are in excess of the minimum buffer zone and meet all other requirements for compen- sation areas. Under current District policy, buffer zones are required around wetlands whenever they are necessary to maintain the integrity of the wetland. They are a reasonable tool in the District's arsenal to protect water, fish and wildlife resources. Testimony established that they are particularly essential when an applicant proposes to build a project immediately adjacent to a wetland so that erosion or destruction of the wetland may be avoided. The rule merely extends the District's existing policy to isolated wetlands.
Findings Of Fact Petitioner filed Application No. 13-31-0286 on or about December 4, 1972, with the Florida Board of Trustees of the Internal Improvement Trust Fund, for a dredge and fill permit. This application was amended by the Petitioner on August 19, 1975, and again on October 8, 1975. The application as amended was admitted into evidence as Exhibit No. 14. The Mean High Water Line as depicted by the Petitioner on the application, Exhibit No. 14, is acceptable and correct and was stipulated and agreed to by the parties as being a correct depiction of the Mean High Water Line. Petitioner is the owner of approximately 350 acres of land adjacent to and in the Biscayne Bay Aquatic Preserve, located in Sections 21 and 22, Township 52 South, Range 42 East, Dade County, Florida. Approximately 192.8 acres of this land is below the Mean High Water Line and is part of the Biscayne Bay Aquatic Preserve. Petitioner, in the application, seeks to fill approximately 63.2 acres of submerged land below the Mean High Water Line for the purpose of constructing part of a planned 36-hole public golf facility. Less than 18 holes of the proposed golf facility are located on the filled area. The historical background detailing the acquisition by the Petitioner of the above 350 acres is set forth accurately in paragraphs 4, 5, 6; 7, 9, 10, 11, 13, 14 and 15 of Exhibit No. 2, admitted herein, entitled Petitioner's Statement. Therefore, those matters of a factual nature set forth in the aforementioned paragraphs are adopted as though set forth in full herein. Those matters of a conclusive nature, legal or factual, set forth in the aforementioned paragraphs are neither accepted nor rejected except as may be specifically provided herein. The Petitioner is obligated to pay off its General Obligation Bond Issue by which it acquired the 350 acres from Interama. This debt service will cost the Petitioner approximately $950,000 annually through the year 2001, and is paid out of ad valorem tax revenue. This debt constitutes a serious burden upon the taxpayers and citizens of the City of North Miami. There is a need in the North Miami area for the type of recreational facility proposed. At present, the only public golf course in the area is a 9- hole facility which is one of the busiest in the country. The lands owned by Petitioner in the Biscayne Bay Aquatic Preserve and subject of this hearing support a mangrove forest system, composed predominantly of red (Rhizophora mangle) and white (Languncularia racemosa) mangroves, with occasional black mangroves (Avicennia germinans). Prior to mosquito ditch excavation, which occurred approximately 35 years ago, the mangrove forest occupied only the southeastern portion of the acreage, while the remaining area probably supported sawgrass and marshgrass communities. The increase in salinity caused by mosquito ditches promoted the expansion of the mangrove community. Presently, the historical mangrove forest is the best developed portion of the system. The red mangrove trees reach heights in excess of 40 feet and the soil is composed of a deep layer of mangrove mulch. In contrast, the soil beneath the mangroves that invaded the marsh land after mosquito ditching, is primarily marl with a relatively thin organic layer of recent origin. Tidal waters flow onto the site through two 60-inch culverts under NE 135th Street, located on the southeastern perimeter of the property. Water flows north through three mosquito control ditches. The ditch along the eastern boundary terminates a short distance north of the historical forest. The north- south ditches are relatively deep and open, whereas the east-west ditches are filled with silt. Many of the latter are 1 foot to 1.5 feet deep at high tide. While tidal waters flow onto the site, these internal restrictions to flow limit circulation over much of the site. The historical mangrove forest on the subject property is well developed and highly productive. That part of the mangrove forest induced by the mosquito ditches is less well developed and not as productive. However, it is not unproductive. The mangrove forest area proposed for filling by the Petitioner, in terms of forest productivity, produces approximately 2 tons of material per acre annually. This compares to approximately 4 tons per acre annually by the well developed historical forest. The growth and development of both the historical and induced mangrove forests is inhibited somewhat by the restricted flow of tidal water into the forests, which, in turn, is caused by the NE 135th Street Causeway and the silting referred to in paragraph 7. Mangroves thrive on good flow and circulation. Therefore, if the flow and circulation of tidal waters is improved, the mangrove forest will improve. The filling of part of the mangrove forest, together with the dredging of the canals sought to be dug by the Petitioner, and the proposed additional opening in NE 135th Street, would enhance the flow and circulation in the historical forest and probably aid its further development. That same dredging and filling would completely destroy 63.2 acres of the existing, healthy, induced mangrove forest. There is no evidence that the induced mangrove forest proposed for filling is in a fatal state of deterioration. Rather, the question is one of how rapidly or slowly that mangrove forest will develop. Without improved flushing, its development will be slow. Apparently, if the flushing of the induced mangrove forest proposed for filling is improved, its development will be much more rapid. In either case, it apparently will eventually attain, given existing conditions, that stage of development presently enjoyed by the historical forest. The construction of one additional culvert in the NE 135th Street causeway will cost approximately $20,000. The Petitioner does not own the right-of-way to NE 135th Street which would be used in constructing an additional culvert. The owner of that right-of-way appears to be Dade County, which entity is not a party to this proceeding. The Petitioner has an agreement with a private entity known as Munisport, whereby Munisport is to develop and operate the proposed recreational complex, including the golf courses, with the attendant dredging and filling. According to the agreement, at the end of 30 years, the City would own the complex free of any other interest. With regard to the golf courses, the City, throughout their operation, would receive a guaranteed minimum of $86,000 annually, plus a percentage of the fees received by Munisport. As testified to by the City Manager, once the recreational complex is in full operation, the City hopes to receive from it $100,000 to $200,000 annually. The City Manager characterized this as having a small effect upon the financial burden borne by the taxpayers and citizens of the City of North Miami with regard to the bond debt. There was not sufficient evidence presented to establish that, for engineering, environmental, or economic reasons, the golf courses could not be reduced in size or redesigned to eliminate that part to be placed in the Biscayne Bay Aquatic Preserve. Witnesses for the City stated that the City had gone as far as it could in redesigning the project, but no evidence, other than that pertaining to the bond debt, was presented to show why the City took that position. The impact of altering the water storage capacity and volumetric tidal prism within the wetland area, as proposed, can only be adequately assessed by conducting a hydrographic survey. (See Composite Exhibit No. 25.) Such a survey has not been conducted. The Petitioner's application does not involve a public navigation project. The evidence presented does not establish that it is a public necessity that 63.2 acres of mangrove forest in the Biscayne Bay Aquatic Preserve be destroyed by dredging and filling so that part of a public golf course might be constructed. The evidence presented fails to show that the proposed dredging and filling is necessary for the preservation of the Biscayne Bay Aquatic Preserve. The proposed dredging and filling may enhance the quality of approximately 130 acres of mangrove forest in the Preserve, but it will do so by the destruction of 63.2 acres of mangrove forest, also in the Preserve. Viewing the total impact of the proposed dredging and filling on the Preserve, there is no showing that such dredging and filling is necessary to enhance the quality or utility of the Preserve. There was no showing that the 63.2 acres of mangrove forest to be dredged and filled is hazardous to the public health or lacking in aesthetic quality or utility.
The Issue Whether or not Petitioner is entitled to a dredge and fill permit to construct a dock and seawall by provision of reasonable assurances that the project is in the public interest.
Findings Of Fact On May 8, 1989, the Petitioner, Kathryn Haughney, applied to DER for a permit to construct a dock and seawall on the shore of the Halifax River in Volusia County. The portion of the Haughney property where the dock and seawall would be constructed is separated from the Haughney home by John Anderson Drive, which parallels the river's edge and is separated from the river by a ribbon of undeveloped property at that location and to the south. A house is located at water's edge on the lot to the north of the proposed construction site. The Haughney home itself is set well back from John Anderson drive on the side of the street away from the river. The Halifax River is classified as a Class III water body under DER rules. The particular part of the Halifax River where the Haughney property is located and where the dock and seawall are proposed is also within the Tomoka Marsh Aquatic Preserve, which is an Outstanding Florida Water under DER rules. The dock as proposed by Petitioner will be 320 square feet. DER denied the permit application on July 19, 1990, but in so doing did not deny the application on the basis of the proposed dock, which, because of its dimensions, is exempt from DER permitting requirements. The seawall as proposed is to be 137 feet long. Petitioner applied to extend it 16 feet out into waters of the state at the northern end, gradually increasing to 34 feet into waters of the state at the south end. Additionally, 5 feet of riprap would also extend out into waters of the state along the seawall's entire length. The waters of the state that would be filled by the proposed seawall contain lush wetland vegetation that provides habitat for a number of macroinvertebrate species which are part of the food chain feeding fish and wading birds such as egrets and herons. Fiddler crabs and colonies of mussels have been observed on the site. The area to be filled provides a valuable habitat for fish and wildlife. There was no mitigation offered by Petitioner to make up for the loss of habitat to be occasioned by the proposed construction. Although Petitioner asserted DER had named no "endangered species" and that the Environmental Protection Administration had not designated this area as "endangered," those federal concerns were not at issue. If such federally designated species or location designation existed in the locale, it might militate against granting this application for permit, but in the negative, it is irrelevant. A vertical seawall exists immediately north of Petitioner's shoreline. The shoreline to the south remains undeveloped. (See Finding of Fact 2). Construction of seawalls, especially those that extend out from the existing shoreline, typically causes erosion on adjacent shorelines, and additional seawalls exaggerate wave energy and can have a cumulative erosive effect. The foregoing fact is found in reliance upon the testimony of Don Medellin, an Environmental Specialist II for DER, and Barbara Bess, an Environmental Manager for DER, both accepted as experts in environmental aspects of dredge and fill permits. The assertion that actual erosion on the property to the south has already occurred was contained in a letter from Petitioner's southern neighbor (DER Exhibit 6). Petitioner's representatives objected to consideration of this exhibit as "hearsay." They are correct and current erosion to the south is not found as a fact. Nonetheless, actual erosion in a pocket on the north end of Petitioner's shoreline has been shown by the direct testimony of Emmett and Martha Haughney, who assert that their property is eroding due to the existing seawall and that Petitioner wants a permit for a seawall to alleviate this erosion. Their evidence is confirmed by the personal observations and testimony of Mr. Medellin and Ms. Bess. Further, upon their testimony, it is accepted that this minimal pocket of erosion is most likely due to the existing seawall to the north and that if the Petitioner builds a seawall to the specifications now set out in the permit application, there is potential for similar and perhaps cumulative erosion to the shoreline to the south of Petitioner's lot. Neither the city nor county involved has land use restrictions which would prohibit Petitioner's proposed seawall except that Volusia County advocates riprap requirements if this permit application were granted. In its Notice of Permit Denial, DER advised Petitioner as follows: The Department has determined that the follow- ing changes to the project may make the project permittable: The vertical seawall should be eliminated and replaced with coquina rock riprap revet- ment. The riprap should be located further landward and conform to the slope of the existing embankment. Backfilling on the north property line is acceptable provided the fill area does not extend more than 10 feet westward in the most eroded area. Accordingly, the riprap could extend to the adjacent seawall and gradually extend in a more landward direc- tion to prevent excessive elimination of the littoral zone vegetation. Whatever alternative the applicant elects to choose, the removal or elimination of littoral zone vegetation must be offset in the form of mitigation if the impacts can not be reduced any further. Finally, the agent should eliminate the use of generic drawings which must be continually revised. All drawings should reflect the existing and proposed conditions and the impacts associated with the project. Petitioner's contractor, Andy Harris, testified to other alternatives that could be used by Petitioner in constructing her seawall, but the evidence of Mr. Medellin and Ms. Bess is persuasive that the alternative measures proposed by Mr. Harris would not provide the reasonable assurances the law requires DER to obtain from Petitioner.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order affirming its July 19, 1990 Notice of Permit Denial. RECOMMENDED this 25th day of April, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7215 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's letter to Hearing Officer (filed March 22, 1991) The first paragraph complains that a VCR was unavailable in the hearing room so that Petitioner's videotape could not be shown. Petitioner should have made arrangements for showing the tape and did not. Likewise, Petitioner never offered the tape in evidence (for viewing by the Hearing Officer afterwards in preparation of this Recommended Order). Therefore, it very properly was not considered. The next 3 paragraphs refer to the Casden letter (DER Exhibit 6), which is covered in FOF 8-9. The remaining paragraphs are rhetoric and legal argument upon which no ruling need to made under Section 120.59(2) F.S.; however, they are alluded to in the Conclusions of Law. Petitioner's letter to DER Counsel (filed March 25, 1991 by DER, suggesting it was Petitioner's proposed findings of fact) 1-3 For the reasons set out above, the Petitioner's videotape was not considered. The subject of erosion to the degree proved at the hearing is covered in the Recommended Order. 4-5, PS 1-3 Mere rhetoric and legal argument upon which no ruling need be made under Section 120.59(2) F.S.; covered in the Conclusions of Law to the degree appropriate. Respondent's PFOF: 1-11 Accepted as modified to reflect the greater weight of the credible and probative record evidence as a whole. That which is rejected is rejected as not proven or not persuasive. Unnecessary or irrelevant material has likewise been excluded. COPIES FURNISHED: Douglas MacLaughlin Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kathryn Haughney 2301 John Anderson Drive Ormond Beach, FL 32074 Emmett and Martha Haughney 2301 John Anderson Drive Ormond Beach, FL 32074 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact The Respondents, the Theoharises, own the property in question, which is located on the corner of Northeast 26th Street and Federal Highway in Ft. Lauderdale, which property is contiguous to the North Fork of the Middle River, a navigable waterbody within the State of Florida. The subject property is more particularly described as lying within Section 25, Township 49 South, Range 42 East, Broward County, Florida. The site is connected to and is a part of the North Fork of the Middle River with which it regularly exchanges tidal waters. The dominant plant species was white mangroves, a submerged species for purposes of Section 17- 4.02(17), Florida Administrative Code. The North Fork of the Middle River is part of a marine estuary system and as such is important as a spawning or nursery ground for commercially important fish and other marine life in their early life stages, as well as for bluefish, snook, tarpon, flounder and other commercially or recreationally important species. On August 24, 1979 the Respondent and his agents, at the request of the Theoharises, the owners of the property, brought a backhoe on the site and commenced clearing trees, shrubs, and other vegetation from the subject property, including the scooping out or uprooting of a stand of mature white mangroves growing along the river on the submerged portion of the property. This activity was observed by a landowner directly across the river who contacted the Department, who then sent its representative, Mr. Wittkamp, to inspect the work in progress on the Theoharises' site. Mr. Wittkamp identified himself to Mr. Bruce, the Respondent, as an inspector for the Department and informed him that, inasmuch as he did not have a permit authorizing the removal of the mangrove trees and the associated "dredging and filling" operation, he would have to discontinue the work immediately. The Respondent, however, proceeded to continue the removal of the mangroves and clearing the other vegetation, and the grading of the property, all of which was for the purpose of extending a parking lot for the Owner's restaurant. He ultimately completed the job in spite of the warning by the Department's inspector. No permit authorizing this activity was ever obtained. Upon completion of the job the Respondent and his agents had, without a permit, destroyed and removed 2,000 square feet of submerged lands constituting the total destruction of the stand of mangrove trees, and also pushed a quantity of soil, or fill, as well as trash and debris, into the Middle River below the mean high water line. An inspector for the City of Ft. Lauderdale, Mr. Robert Schimmel, visited the site in question prior to the destruction of the mangrove trees and established at the hearing that the trunk diameters of the mangroves before their removal was an aggregate of 98 caliper inches. Based on those measurements, Mr. Reis, an expert witness for the Department, established that the canopy cover provided by the destroyed mangrove trees was approximately 2,000 square feet, or 0.046 acres. If monetary damages are sought to be based on lost detrital value, as the Department seeks to do here, then that productivity loss represented by the removed mangroves can be more accurately measured by determination of the size of the canopy cover rather than other methods. In order to verify his calculation of the extent of the lost mangrove canopy cover Mr. Reis measured other mangrove canopies with similar trunk dimensions. That witness then took the 2,000 square foot dimension and calculated the value of the destroyed mangroves with reference to a scientific study, "The Tree Nobody Liked" by R. Gore published in the May, 1977 issue of National Geographic which ascribed a value of $4,000 per acre per year for South Florida mangroves. Other methods of economic valuation of mangrove stands were shown by reference to generally accepted authoritative scientific studies, to be as high as $84,000 per acre per year, and indeed, in 1974 Nicholas and Blowers, consultants to Deltona Corporation, published The Socioeconomic Impact of the Marco Island Development and set fourth values for mangrove trees per acre ranging from $34,000 to $100,000 per acre per year. So too, in 1974, Heald, Odum and Tabb published Mangroves in the Estuarine Food Chain, which cited average values for South Florida mangrove productivity equivalent to approximately $25,800 per acre per year. Thus the Petitioner used the lowest generally accepted method and figures for arriving at the value of the mangrove trees and there was no contradiction of the showing by the Department's expert witness that an acre of mangroves is actually worth considerably more than the figures used by the Department in calculating the alleged damages in this case. The unrefuted means of calculating the pertinent environmental loss is a conservative one especially because it only includes loss of the detrital value of the removed mangrove trees. Detrital value is the value of the accumulation of leaves, branches and seeds in the estuary in which the mangroves grow and which serves as an essential element in the estuarine food chain. The vegetable matter dropping in the water from the trees is decomposed by organisms such as algae, fungi and bacteria. The leaf particles dropped by the trees are coated with protein in the form of these microorganisms and then become available as a food source to zooplankton, which are in turn harvested by small fish and intermediate fish, which serve as food for larger species of fish which may be commercially valuable. The reduction in the mangrove population thus weakens the basis of the estuarine food chain and thus reduces the size of the aquatic community or species populations which can be supported by such a food source. Mangroves are additionally valuable because they serve a water cleansing function in that they filter out contaminants in the water in which they grow. They are particularly beneficial in controlling pollution from upland runoff. Nutrient uptake and assimilation is particularly important to the geographical area involved in this case because the North Fork of the Middle River is burdened with nutrient discharge from sewage treatment plants, as well as stormwater drainage. Thus the maintenance of healthy mangrove populations along the waterway is directly related to maintenance and restoration of good water quality and the prevention of eutrophication. In addition to the above benefits, mangroves serve as a shoreline stabilizer in that they prevent the erosion by wave action against the shore by storms or boat wakes, and provide shelter, food and breeding areas for fish and other forms of marine life. Mangrove wetlands aid in flood prevention, conservation of water during drought periods, produce oxygen and sequester heavy metals and other poisonous substances in the anaerobic muds they produce. Additionally, they serve as nesting and roosting habitat for birds and as a place of shelter for many terrestrial animals. Mangrove wetlands also, by serving as nursery areas for the rearing of fish and marine life, constitute an important basis of support for the area's sport fishing and commercial fishing industries. The Petitioner's assessment of the damages involved in this case from the destruction of the trees and shoreline area did not take into account any potential damage to the fishing industry or any damage attributable to the resultant loss of shoreline stabilization, however. Elimination of mangroves thus has an adverse effect on the water quality and interferes with and potentially injures the conservation and propagation of fish and other marine life, as well as terrestrial wildlife and other natural resources. The Petitioner, in establishing damages by the lowest proven method of evaluation, demonstrated a value of an acre of such mangrove trees per year of $4,000. Then, given that a mangrove seedling takes approximately 15 years to reach maturity, this annual loss of productivity should be multiplied by 15 years, times the total of 2,000 square feet of mangrove canopy destroyed or .046 acres. This unrefuted means of quantifying environmental injury caused by the acts of the Respondent establishes damages to be in the amount of $2,760. Various items of costs involved in tracing, investigating and preparing for the prosecution of this case were alleged by the Petitioner, including cost for preparation and attendance of the various expert witnesses. All of the witnesses were paid state employees, however, and although they doubtless spent a great number of hours preparing for this proceeding, the evidence does not establish the specific amount of costs and expenses for investigation, preparation and attendance of witnesses separately attributable to this case, as opposed to those incurred in the course of Petitioner's employees normal duties. Moreover, although the Petitioner entered into a settlement with the Respondents, the Theoharises, for a portion of the damages to the pollution violation here involved, there was no showing whether or not the $1,000 paid by the Theoharises to the Petitioner's warning notices and voluntarily agreed to replant mangrove seedlings in response to the Department's Order for Corrective Action and to pay $1,000 of the Department's estimate of damages. This agreement was signed by the Theoharises and took the form of a consent order (See Exhibit 1). The instant Respondent, Charlie Bruce, neither personally nor on behalf of his corporation, entered into the settlement negotiations involving the Theoharises.
Recommendation Having considered the competent, substantial evidence in the record, as well as the pleadings and arguments of counsel, it is recommended that the Respondent Charlie Bruce d/b/a Charlie Bruce and Sons Backhoe Service, Inc. pay damages for the above violations in the amount of $1,760. Said sum represents the total environmental damages proven to be caused by that Respondent, after deduction of the $1,000 damages already paid by the Respondents, the Theoharises and the alleged figures for costs and expenses which were not proven to be entirely attributable to this Respondent. The sum of $1,760 shall be payable to the State of Florida Pollution Recovery Fund c/o the Department of Environmental Regulation, Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida, 32301 within ninety (90) days from the date of entry of a final order herein. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of December, 1980. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1980.
The Issue The issue is whether Respondent Crestwood Lakes Associates provided reasonable assurance that a modification to a conceptual surface water management permit complies with the permit criteria contained in statutes and rules.
Findings Of Fact Background This case involves a 900-acre parcel in the Loxahatchee Slough, west of the Florida Turnpike in Palm Beach County (County). Although the property occupies part of a slough, all of the wetlands in this case are isolated wetlands. Respondent Crestwood Lakes Associates (Applicant) owns the south 503 acres, Petitioner owns the north 287 acres, and the Village of Royal Palm Beach (Village) owns the remaining 115 acres, which abut the southwest boundary of the north parcel. The acreages do not total 900 acres because the numbers are approximate. The 900-acre parcel is generally bounded on the south by Okeechobee Boulevard and the north and east by the M-1 canal. The west boundary of the south part of the parcel adjoins a residential development known as Loxahatchee Groves, and the 115-acre parcel adjoins a County-owned preserve of at least 600 acres. Applicant’s land is undeveloped except for some landclearing. Petitioner’s land is partly developed, mostly in the south next to the boundary with Applicant’s land. The Village's 115 acres are a preserve, divided equally between wetlands and uplands. On February 11, 1988, Respondent South Florida Water Management District (District) issued surface water management (SWM) permit No. 50-00618-S-02 to Royal Palm Homes, Inc. for conceptual approval of a SWM system serving a residential development on the 900-acre parcel (1988 Permit). References to the Original Developer shall include Royal Palm Homes, Inc., its agents, lenders, and assigns, except for Petitioner and Applicant. The permitted development, which was known as the Royal Palm Homes PUD, comprises single-family and multifamily residences, wetland preserve areas, two 18-hole golf courses, and a park area. On August 3, 1994, Applicant filed SWM application number 940803-6 to modify the 1988 Permit to show the change in ownership and obtain conceptual approval of a modification to the permitted SWM system. The application was not complete when the new Environmental Resource Permit (ERP) rules replaced the old Management and Storage of Surface Water (MSSW) permit rules. On May 24, 1996, the District transmitted the staff report, which proposed the issuance of a permit modification. On June 13, 1996, the District approved the issuance of the proposed permit modification. On the same date, Petitioner filed its petition challenging the proposed agency action. Permits The first relevant SWM permit for the 900-acre parcel involved a larger parcel that includes the 900-acre parcel. On September 14, 1978, the District issued a two-page permit authorizing the “construction of a water management system serving 2073 acres of residential lands by waterways discharging into canal C-51.” This 1978 permit, which is identified as number 50-00618-S, contains a special condition calling for a minimum finished floor elevation of 18.0 feet National Geodetic Vertical Datum (NGVD). The next permit is the 1988 Permit, which is a substantial modification to the 1978 permit. The 1988 Permit covers only the previously described 900 acres and, as modified, currently remains in effect. The 1988 Permit requires the preservation of two large wetlands in the north parcel, just north of the 115-acre preserve; one wetland is about 30 acres and the other is about ten acres. The 1988 Permit requires the preservation of no other wetlands in the north parcel, but, in addition to the wetlands in the 115-acre preserve, the 1988 Permit requires the preservation of several much smaller wetlands in the south parcel. The staff report for the 1988 Permit divides into three basins the drainage area for the 900-acre parcel: a north basin of 98.9 acres, a central basin of 525.7 acres, and a south basin of 270.8 acres. The staff report states that basin runoff will pass through a system of inlets and culverts into a series of interconnected lakes, from which, through control structures, the runoff will pass into the M-1 canal and eventually into the C-51 canal. The staff report notes that the control elevations will be 17.25 feet NGVD for the north basin, 17.55 feet NGVD for the central basin, and 17.75 feet NGVD for the south basin. Under the discussion of environmental impacts, the staff report observes that the 1978 permit proposed for protection only 30 acres of wetlands among the 281 acres of isolated wetlands on the site. The staff report notes that “extensive” melaleuca invasion has taken place since the 1978 permit and only 160 acres of wetlands remain in “relatively good” condition, with much of this subject to melaleuca encroachment. Due to the “extensive seed source” and “seasonal drying of the wetlands,” the staff report predicts eventual melaleuca dominance of the “entire site.” The staff report asserts that the proposed development plan includes the protection of about 100 acres of the “best quality wetlands,” plus eight acres of wetlands created in conjunction with the golf courses and 15 acres of wetlands created as littoral zones in conjunction with the lakes to be constructed. The staff report calls a program “to eradicate all melaleuca from the site” “[t]he major environmental feature” of the proposed development plan. But this major environmental feature of the 1988 Permit is presently in jeopardy. One major component of the present case is that, following the conveyances of the three parcels by the Original Developer, the District has evidently concluded that no one is responsible to perform certain obligations under the 1988 Permit and no remedies are available for the nonperformance of these obligations. It appears that these conclusions are largely driven by the vagueness of the plan to eradicate the melaleuca. This plan is called the "Melaleuca Eradication Plan." The Melaleuca Eradication Plan is incorporated into the 1988 Permit. The Melaleuca Eradication Plan, which is dated December 11, 1987, recounts that the Original Developer and regulatory bodies agreed that the melaleuca should be “eradicated and a program for this should be developed and included as a part of the permit application.” The plan states that the eradication plan will cover the entire 900- acre site with the Original Developer performing the “initial . . . program” on the entire site, including the 115-acre preserve to be deeded to the Village. The Melaleuca Eradication Plan calls for the Original Developer to create a bonded authority to conduct the “ten-year melaleuca eradication program.” The program is phased to coincide with the projected 10-year buildout of the 3000-unit parcel. The Melaleuca Eradication Plan describes in detail the three phases of the program and exactly how the Original Developer will proceed to remove the melaleuca and restore wetlands by planting native wetland species in disturbed areas. The plan promises a yearly inspection followed by hand-removal of any seedlings discovered on the site. This last phase will terminate ten years after commencement of the first phase. A “Wetlands Monitoring/Maintenance Program” is also incorporated into the 1988 Permit. The Wetlands Monitoring/Maintenance Program, which is dated December 8, 1987, states that Dr. Dwight Goforth performed a wetlands survey of the 900-acre site in 1985 and divided wetlands into three categories based on their quality. The Wetlands Monitoring/Maintenance promises the preservation of 112.71 acres of wetlands comprising 98.81 acres of “large wetlands totally preserved” and nine wetlands totaling 13.9 acres that will be “partially preserved.” Also, the program will create golf course wetlands of 6.93 acres and littoral-zone wetlands around the lakes of 15 acres. Thus, the program summarizes, the “total wetland acreage preserved, enhanced and created will [be] 134.64 acres.” The Wetlands Monitoring/Maintenance Program describes a three-year monitoring program using transects to assist in the vegetative mapping of the site. The program also promises semiannual observations of birds, small rodents, and larger mammals using the wetlands and adjacent preserved uplands, as well as semiannual sampling for fish, macroinvertebrates, and amphibians. The Wetlands Monitoring/Maintenance Program outlines a plan to remove melaleuca and control algae buildup in the lakes. The program promises to contain algae through the use of “biological controls” and, when needed, hand-raking. The program also assures that the Original Developer will use a “conservative fertilization program” for the golf course and landscaped areas to reduce eutrophication in the created lakes. On February 18, 1988, the District issued its conceptual approval of the 1988 Permit. Among the special conditions of the 1988 Permit are Special Condition 15, which requires wetland monitoring and maintenance in accordance with the Wetlands Monitoring/Maintenance Program, and Special Condition 16, which requires melaleuca removal in accordance with the Melaleuca Eradication Plan. Also, Special Condition 17 requires low berms around protected or created wetlands, including littoral zones, to protect against sheetflow runoff from the golf course or other areas of intense development. The references in the preceding paragraphs to the responsibilities of the "Original Developer" imply greater clarity than is present in the Melaleuca Eradication Plan or Wetlands Monitoring/Maintenance Program. The passive voice predominates in both these documents, so it is sometimes difficult to determine on whom a particular responsibility falls. The Melaleuca Eradication Plan states clearly that "[the Original Developer] will conduct the initial melaleuca eradication on the entire site including the dedicated park area [i.e., the 115 acres]." The next sentence of the plan contemplates the conveyance of the 115 acres to the County. But, after these clear provisions, the Melaleuca Eradication Plan lapses into the passive voice almost invariably. The next two sentences read, "A bonded authority will be created to conduct the ten-year melaleuca eradication program" and "The eradication program will be carried out through a bonded agreement with the [Original] Developer to remove the melaleuca . . .." Alluding to the several phases of melaleuca eradication, the plan states only "[t]he eradication program will be completed in stages " Only two other sentences establishing responsibility for melaleuca eradication identify the responsible party. The end of the plan states that the "bonded authority responsible for initial eradication clearance will likewise provide a yearly inspection." One of the final sentences of the plan adds: "the bonding authority's crew will hand remove entire seedlings found on site." The Wetlands Monitoring/Maintenance Program is similar except that it does not once name the entity responsible for the monitoring and maintenance duties or hiring the firm or individual to conduct the actual work. The two special conditions incorporating these two documents likewise are in the passive voice, implying only that the responsibility belongs to the Original Developer. Given the vagueness of the melaleuca-eradication and wetlands-maintenance documents, it is not surprising that they fail entirely to address the issue whether these responsibilities run with the land, remain the responsibility of the Original Developer, or, for the eradication of melaleuca, remain the duty of the "bonded authority," if the Original Developer ever created such an entity, which appears highly doubtful. The documents likewise do not disclose the penalties for noncompliance. On June 16, 1988, the District issued a modification to the 1988 Permit for the construction and operation of a 110.9-acre residential development in Phase I, which occupies the central basin. On October 1, 1988, the United States Army Corps of Engineers (Army Corps) issued the Original Developer a permit to destroy 164 acres of wetlands on the 900-acre parcel. Special conditions of the 1988 Army Corps permit require the preservation of "115 acres of high quality wetlands," the creation of 18 acres of wetlands and 15 acres of littoral shelf, and the implementation of a "Melaleuca Eradication Program," which is the same program as is incorporated in the 1988 Permit. The 1988 Army Corps permit contains an attachment dated October 24, 1987. This attachment identifies the protected wetlands as the two large wetlands in the north parcel totaling about 40 acres, 58 acres in the 115-acre preserve, and 53.5 acres in the south parcel. The 1988 Army Corps permit protects several wetlands in the south parcel, including wetland numbers 14 (3.04 acres), 16 (1.6 acres), 23 (0.53 acres), 30 (2.6 acres), 44 (0.8 acres), 29 (1.08 acres), and 46 (3.0 acres). These wetlands, which total 12.65 acres, are seven of the nine wetlands partially preserved in the 1988 Permit, although some of the acreages vary from those preserved in the 1988 Permit. Unlike the District's permits (except for the subject proposed permit modification), the 1988 Army Corps permit addresses conveyances by the developer. The 1988 Army Corps permit states: "If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization." Below the signature line of the 1988 Army Corps permit is language stating: When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below. On March 1, 1989, the Original Developer conveyed the 115-acre preserve to the Village, which later leased the preserve to the County. The Original Developer had not eradicated the melaleuca at the time of the conveyance, nor has anyone since done so. On August 17, 1990, water elevations in the wetlands in Phase I reached 19.4 feet NGVD, washing out construction pads, roads, and in-ground utilities. On September 7, 1990, the District issued a stop-work request because the SWM system was not working as required. On September 28, 1990, the District approved interim measures to preserve the wetland hydroperiod and allow for wetland overflow. These measures include berming the residential areas in Phase I/Plat I adjacent to wetlands. On June 13, 1991, the District approved additional modifications to the 1988 Permit and the construction and operations permit for Phase I and issued a conceptual approval for works in the north and central basins. The revisions to the conceptual approval include adding two control structures to the north wetland that connect to the water management system in the north basin and adding a berm around the smaller of the two preserved wetlands in the north parcel. The construction approval was for a perimeter berm along the south wetland and park areas. On June 24, 1992, the District issued a staff report recommending issuance of another modification of the 1988 Permit for the conceptual approval of a SWM system to serve the 900-acre parcel and approval of construction and operation of a SWM system to isolate and control the existing onsite wetlands and revise the control structure for the central basin. The staff report explains that this modification proposes berming the wetlands to the 100-year, three-day peak elevation. The staff report notes that the wetlands basin consists of 295.18 acres of wetlands, including 155.85 acres of “wetlands/uplands.” The staff report notes that the north basin contains 107.41 acres of “good quality wet prairie wetlands” with “minimal” melaleuca encroachment. The staff report restates that the purpose of the modification is to berm all of the wetlands and uplands not planned for development. Special Condition 19 requires the Original Developer to dedicate as conservation and common areas in deed restrictions the “wetland preservation/mitigation areas, upland buffer zones, and/or upland preservation areas," so that these areas are the “perpetual responsibility” of a named property owners’ association. Special Condition 22 states that “a wetland monitoring and maintenance program” and “a melaleuca eradication program” “shall be implemented,” but the condition does not expressly state by whom. Special Condition 22 requires that the work implementing these programs conform to these “approved environmental programs as outlined in the [1988 Permit].” Special Condition 25 provides that, on submittal of an application for construction approval in the south basin (Phase II), the "permittee shall submit a detailed wetland construction mitigation, monitoring and maintenance plan.” In evaluating the plan for approval, the District shall apply the “environmental criteria in effect at the time of construction permit application.” Although the approval of the District is not attached to the staff report, the District approved the June 24, 1992, staff report and proposed permit. The 1992 permit modification did not address the issue of who was responsible for melaleuca eradication after the sale of the property. On November 10, 1993, the staff report accompanying another request for a permit modification restates the special conditions of earlier permit modifications. Special Condition 23 restates the requirement that a melaleuca eradication program “shall be implemented,” again not stating by whom. Special Condition 23 now requires the completion of the melaleuca eradication program by February 25, 1994. The omission of a referenced exhibit to the permit from the exhibit filed in this case prevents a determination that this is the same as the Melaleuca Eradication Plan incorporated in the 1988 Permit and restated in the 1992 modification, although it probably is. In any event, Special Condition 23 concludes in another sentence lacking a stated or implied subject: “Maintenance of the preserved wetlands and berm planting areas shall be conducted in perpetuity to ensure that the conservation areas are maintained free from exotic vegetation (Brazilian pepper, Australian pine and melaleuca) . . ..” Although the record does not contain the written approval of the District to the staff report, the District approved the staff report dated November 10, 1993. On November 12, 1993, the Original Developer conveyed by special warranty deed the north to Petitioner. The deed is subject only to "easements, declarations, restrictions and reservations of record . . .." The record does not provide recording information for the deed. The Original Developer probably conveyed the south parcel to Applicant in the same fashion and at the same approximate time. Almost five months later, on March 29, 1994, the Army Corps issued another permit for the 900-acre parcel. Although the Original Developer had conveyed at least the north parcel, the Army Corps issued the 1994 permit to the Original Developer. The 1994 Army Corps permit authorizes the destruction of 158 acres. The general conditions governing transfers are the same as those in the 1988 Army Corps permit. The special conditions of the 1994 Army Corps permit require the permittee to preserve and enhance only 110 acres of high quality wetlands, instead of preserving 115 acres of such wetlands, as was required in the 1988 Army Corps permit. The 1994 Army Corps permit drops the requirement of creating eight acres of wetlands and 15 acres of littoral zone, as was required in the 1988 Army Corps permit, but requires the preservation of what appears to be the 39.5-acre preserve that is proposed by Applicant in the subject permit modification, as described below. Special Condition 3 of the 1994 Army Corps permit adds that all preserved areas "will be maintained in perpetuity free of Melaleuca. The permittee agrees to develop a bonded Melaleuca eradication program for the entire 906 acres. Copies of the bonded agreement will be provided to this office for approval before development can commence." The next permit activity affecting the 900-acre parcel is the subject application filed by Applicant on August 3, 1994, for its 503-acre parcel. On May 24, 1996, the District issued a staff report for conceptual approval of a SWM system proposed by Applicant for its 503-acre parcel. On June 13, 1996, the District issued an addendum to the staff report that contains another special condition that is not especially relevant to this case. In the background section, the staff report mentions the flooding of Phase I of the north parcel and states that the District had “assumed the adjacent wetlands would flow away from the development.” The staff report outlines the modifications implemented to eliminate the flooding; these modifications include connecting the M-1 canal, through inlets, with several wetlands located in the north and central basins. According to the staff report, Petitioner’s north parcel, which totals 287.34 acres, includes the Phase I/Plat 1 area, north basin, and part of central basin south of Phase I. Describing Applicant’s proposal, the staff report states that a preserve of 39.5 acres will be located in the northwest corner of the south parcel, adjoining the east boundary of the 115-acre parcel. The staff report states that the 39.5-acre preserve will sheetflow through cuts in the berm to wetlands in the 115-acre preserve. The 115-acre preserve is connected to the SWM system permitted on November 10, 1993, to eliminate flooding from these wetlands, whose control elevation is 19 feet NGVD. The staff report describes the south parcel as “dominated by flatwood habitat,” within which are stands of Australian pine and other exotic plant species that have recently been spreading across the site. The onsite wetlands are 4.93 acres of wet prairies, 18.4 acres of pond cypress strands, 1.56 acres of isolated marsh, 3.5 acres of cypress mixed with pine flatwood, and 163.91 acres of melaleuca. The staff report finds that only the 4.93 acres of wet prairies and 18.4 acres of cypress are in good condition, but melaleuca has become established in many of the wet prairies. The 1.56 acres of freshwater marshes and 163.91 acres of melaleuca are in poor condition. The 3.5 acres of cypress mixed with pine flatwoods are in fair condition. As for listed species, the staff report mentions only the possibility that herons might forage onsite during periods of standing water. Summarizing the impact of the proposed project on wetlands preservation, the staff report endorses the hydrologic reconnection of the 39.5-acre wetland/upland site with the 115-acre wetland. The staff report notes that water levels in the 115-acre preserve, which has been bermed to 21 feet NGVD, have stabilized at 19 feet NGVD. The staff report asserts that the “proposed wetland impacts (183.54 acres) were previously permitted under the conceptual permit application” for the original 1988 Permit. The staff report adds that this modification is to “change a portion of the original mitigation requirements . . . and includes impacts to a 6.78 acre wetland area that was previously permitted to be preserved.” But the staff report does not recommend the preservation of this wetland “[d]ue to the reduced hydrology and proximity to the proposed upland development” and the mitigation and compensation provided by the 39.5-acre preservation area. The staff report states that 8.76 acres of the 39.5- acre preserve are wetlands, and the remainder are uplands. As for the 8.76 acres of wetlands, the staff report lists 0.67 acres of mixed cypress and pine flatwoods, 4.93 acres of wet prairies, and 3.16 acres of cypress. Applicant would also restore 4.95 acres of pine flatwoods. As for the 183.54 acres of wetlands to be destroyed, the staff report lists 2.83 acres of mixed cypress and pine flatwoods in fair condition, 15.24 acres of cypress in fair condition, 1.56 acres of freshwater marshes in poor condition, and 163.91 acres of melaleuca in poor condition. Addressing the mitigation and monitoring elements of the current proposal, the staff report states that the modification would eliminate the creation of 15 acres of littoral wetlands around SWM lakes and 7.99 acres of marshes in golf courses in return for the creation of the 39.5-acre preservation area. The staff report assures that Applicant will perpetually manage and maintain the 115-acre preserve. Conceding that the 1988 Permit also required long-term maintenance of the 115-acre parcel, the staff report notes that the initial eradication effort was never completed. The staff report mentions an “access agreement” giving Applicant the authority to enter the 115-acre preserve for mitigation and monitoring, but “anticipat[es]” that Applicant will submit an application for another permit modification, on behalf of the two governmental entities, so that Applicant can “assume future maintenance responsibilities for this area.” As is clarified by the maintenance and monitoring plan, which is part of the proposed permit, Applicant's expectation is that the County and Village, not Applicant, will assume future maintenance responsibilities for the 115-acre preserve. The staff report concludes that the District should issue the permit subject to various conditions. Special Condition 1 is that the minimum building floor elevation is 20 feet NGVD. Special Condition 16 requires the implementation of a wetland mitigation program and requires Applicant to create 4.95 acres of marsh; restore 3.16 acres of cypress, 4.93 acres of marsh, and 0.67 acres of mixed forest; and protect 25.79 acres of uplands. Special Condition 17 sets performance criteria for the mitigation areas in terms of percentage and length of survival of vegetation. Special Condition 17 supplies completion dates for monitoring reports. Special Condition 21 addresses listed species. Noting that listed species have been seen onsite or the site contains suitable habitat for such species, Special Condition 21 requires Applicant to coordinate with the Florida Game and Fresh Water Fish Commission or the U. S. Fish and Wildlife Service for guidance, recommendations, or permits to avoid impacts to such species. The monitoring and maintenance plan does not address direct and contingent liabilities for maintenance and generally is a poor candidate for enforcement. In addition to the vagueness of the passive voice, the plan is, at times, simply unreadable, as, for example, when it concludes boldly, but enigmatically: The site as a whole is evolving hydrologic trends which permits successional seres development toward communities with shorter hydroperiods and ultimately, toward more upland transitional and/or exotic species dominance of historically wetland habitats. Long-term prospectives infer that successional deflection has become a severe detriment for natural environmental control to alter the present scenario. Active management coupled with graduated balanced in hydrologic restoration and created habitat elements will become the processes engineered to obtain an infusion of probabilities fashioned to inscribe a regenerative adaptation to the present site condition while fostering in situ processes, to optimize derived functions, for the maintenance of both habitat and wildlife over the long-term existence of the Preserve. (Sic.) Water Quality Impacts Petitioner does not contend in its proposed recommended order that the proposed project fails to meet applicable requirements regarding water quality. Applicant has provided reasonable assurance that the proposed permit modification would not violate State water quality standards. Flooding Petitioner contends in its proposed recommended order that the proposed permit modification would not meet applicable requirements regarding water quantity and flooding. However, Applicant has provided reasonable assurance that the project would not violate these requirements. There are several aspects to a SWM system. Undeveloped land stores and conveys rainfall through soil and surface storage. An artificial SWM system alters the undeveloped land’s storage capacity by the addition of a storage and drainage system, such as, in this case, conveying water through the soil into storm drains and then to lakes to store surface runoff prior to release, through an outfall structure, into a receiving body of water--in this case, the M-1 canal. The SWM system hastens the conveyance of stormwater runoff offsite. The control elevation of a SWM system is the height at which water in the lakes will flow through the outfall structure into the receiving body of water. Except during the dry season, the control elevation tends to establish not only the water level of the SWM lakes, but also of the nearby water table. The hastening of drainage offsite with the establishment of control elevations produce the drawdown effect of SWM systems. As to flooding, the basic underlying dispute between Petitioner and Respondents is whether to use the pre- or post- development depth to water table. In determining whether an applicant has provided reasonable assurance as to the impact of a proposed development on wetlands, one would project the effect of any post-development drawdown on the wetlands themselves and their functions and inhabitants. It would be illogical not to do the same in determining whether an applicant has provided reasonable assurance as to the impact of a proposed development on flooding. Pre-development, the average depth to water table on Applicant’s property is as little as two feet. Post- development, the average depth to water table on Applicant’s property will be five feet, which is the difference between the control elevation of 14 feet NGVD and ground elevation of 19 feet NGVD. Petitioner’s evidence concerning flooding is flawed because its expert witness based his calculations on an average depth to water table of two feet on Applicant’s property. He did not adjust for the considerable drawdown effect of the SWM system. The District table allows for no more than four feet between the water table and ground, so there is an added margin of safety in the ensuing flooding calculations. Another important factor in the flooding calculations is the soil type in terms of permeability. The District properly characterized the prevailing soils as flatwoods, and the soils onsite are in the category of “good drainage.” Applicant’s suggestion that flooding calculations use the post-development soils is rejected. Post-development depths to water table are used because they can be calculated to predict post-development conditions accurately. Applicant produced no proof that it would replace such massive amounts of soil from the site with more permeable soils so as to justify reclassifying the soil type. The District's flooding calculations probably overstate the risk of flooding in the three-day, 100-year design storm because they ignore lake bank storage, which is the additional amount of water that a lake can store in its sloped banks above the typical water elevation. The District could have relied on the effect of lake bank storage for additional assurance that the proposed project will not result in flooding. The proposed project contains a large number of long, narrow lakes, which will thus have a relatively high percentage of lake banks to lake area. Additionally, the District has raised the minimum floor elevation at this site by two feet over 18 years. Whatever other effects may follow from this trend, the higher floor elevation offers additional protection to onsite improvements. The flooding of Petitioner’s property seven years ago understandably is a matter of concern to Petitioner. Applicant proposes to change the configuration of drainage basins, but the District has adequately addressed the drainage issue, and this is not the first time in the 20-year permitting history of this property that the District has approved a reconfiguration of basins. Also, in the 1988 Permit, the District incorrectly projected the direction of runoff under certain conditions. However, the flooding was partly due to inadequate road- drainage facilities. Following the flooding, the Original Developer enlarged these features and bermed the flooding wetlands, so as to eliminate the flooding of developed areas due to design storm events. On balance, Applicant has proved that the proposed permit modification would not adversely affect flooding or water quantity. Environmental Impacts A. Wetlands Petitioner contends in its proposed recommended order that the proposed permit modification would not meet applicable requirements regarding environmental impacts to wetlands. Applicant has failed to provide reasonable assurance that the proposed work would not violate these requirements. There are two major deficiencies in the District's analysis of wetland impacts and mitigation or compensation. First, the proposed permit modification includes mitigation or compensation in the form of melaleuca removal. But prior permits have already required the same work, no one has ever done the work, and the District does not know if these permit requirements are still enforceable. Second, the proposed permit modification ignores 13.9 acres of preserved wetlands in the 1988 Permit, allowing their destruction without mitigation or compensation. The permitting process requires the District to balance the impacts of development and mitigation or compensation on the natural resources under the District's jurisdiction. Balancing these impacts in issuing the 1988 Permit, the District required the complete eradication of melaleuca in return for permitting the residential, institutional, and recreational development proposed by the Original Developer. District staff, not the Original Developer or Petitioner, called the Melaleuca Eradication Plan “the major environmental feature” of the development plan approved by the 1988 Permit. The major environmental feature of the 1988 Permit clearly justified significant development impacts on natural resources. To justify additional development impacts on natural resources, the District now proposes to count again another developer’s promise to eradicate the melaleuca. The District claims that the term of the original melaleuca protection plan was only ten years, not perpetual as is presently proposed. However, the District's claim ignores Special Condition 23 in the 1993 permit modification. This condition set a deadline of February 25, 1994, for the eradication of melaleuca and made perpetual the requirement that one or more of the potentially responsible parties--the Original Developer, Petitioner, Applicant, the bonded authority, the property owners' association, or transferees-- maintain the wetlands free of melaleuca and other exotics. Unfortunately, this “major environmental feature” of the 1988 Permit, as well as subsequent permit modifications, was so poorly drafted as to leave potentially responsible parties unsure of their legal obligations. The District tacitly suggests that it cannot enforce the obligations imposed by the 1988 Permits and later modifications for the eradication of melaleuca. But there is presently no reason for the District to resort again to permitting without first reviewing carefully its enforcement options. The District should first determine whether anyone will voluntarily assume these obligations. As a business consideration, Petitioner may choose to eradicate the melaleuca from the north parcel and 115-acre preserve to prevent Applicant from providing this service and claiming that it should receive compensation credit against additional environmental impacts permitted by a modification of the 1988 Permit. Maybe the County or Village has already budgeted funds for this work. If no party offers to perform the necessary work, the District must next determine its legal rights and the legal obligations of these parties. Depending on the results of this research, the District may need to consider litigation and the cessation of the issuance of construction and operation permits on the 900-acre parcel or either the north or south parcel. At this point, the District should discuss joint litigation or permit revocation with the Army Corps, whose 1994 permit requires the permittee to develop a bonded melaleuca-eradication program and apparently imposes on the permittee the responsibility to maintain all preserved areas free of melaleuca. Only after having exhausted these options may the District legitimately conclude that melaleuca eradication on any part of the 900 acres represents fair compensation for the development impacts on jurisdictional natural resources. The second major problem as to wetlands impacts concerns the calculation of wetlands acreages to be destroyed by the proposed permit. The 1988 Permit expressly incorporates the Wetlands Monitoring/Maintenance Program. This program, as an operative part of the 1988 Permit, represents that the developer will “partially preserve. . .” nine wetlands totaling 13.9 acres. The partial preservation of wetlands does not mean that a five-acre wetland will remain a five-acre wetland, except that its function will be impaired. Partial preservation means that, for instance, two acres of a five- acre wetland will be preserved. It is impossible for the District to have required mitigation to offset the destruction of these 13.9 acres of wetlands because the District denies that the 1988 Permit required the partial preservation of these nine wetlands. As noted below, neither the District nor Applicant can identify all of the wetlands that make up the 13.9 acres. Rather than account for these wetlands that were to have been partially preserved, the District instead contends that this undertaking by the Original Developer was ineffective or nonbinding because it was overriden by contrary statements in the staff report. Not so. The specific provisions delineating the preserved wetlands area in the Wetlands Monitoring/Maintenance Program, which was prepared by the Original Developer, override more general statements contained in the staff report accompanying the permit. There is not necessarily a conflict between the staff report and the Wetlands Monitoring/Maintenance Program. The staff report states that the plan “includes the protection of approximately 100 acres of the best quality wetlands,” together with the creation of eight acres of golf course wetlands and 15 acres of lake littoral zones. The plan “includes” these wetlands among those preserved or created; the word suggests that the list is not exhaustive, but only illustrative. Alternatively, if the list were exhaustive, the preservation of “approximately” 100 acres reasonably encompasses the 112.71 acres of partially or totally preserved wetlands cited in the Wetlands Monitoring/Maintenance Program. More to the point, on October 26, 1987, Donald Wisdom, the engineer handling the 1988 Permit, prepared a memorandum for the file stating that the total acreage of wetlands to be preserved or created was 134.45. This figure represents an insignificant deviation of 0.19 acres from the total listed in the Wetlands Monitoring/Maintenance Program, which was dated six weeks later, on December 8, 1987. In the October 26 memorandum, Mr. Wisdom describes the preserved wetlands as 111.46 acres of A- and B-quality wetlands. This is 1.25 acres less than the acreage in the Wetlands Monitoring/Maintenance Program. These small discrepancies were eliminated by November 18, 1987, when Mr. Wisdom wrote a memorandum noting that the program called for the total preservation of 98.81 acres and partial preservation of 13.9 acres. Adding the created wetlands, the new total for preserved or created wetlands was 134.64 acres. A month later, a District employee wrote a memorandum to the file, expressing his “main concern” that the proposed development would protect only 99 acres of wetlands. It is unclear why the employee mentioned only the 98.81 acres slated for preservation. Perhaps he was confused or mistaken. But the misgivings of a single employee do not constitute the rejection by the District of a developer's proposal to preserve nearly 14 acres of high-quality wetlands. The staff report for the 1988 Permit notes that the 900-acre site contained about 281 acres of wetlands. If the 1988 Permit required the preservation, as an entire wetland or part of a larger wetland, of 112 acres of wetlands, then the 1988 Permit allowed the destruction of 169 acres, which is consistent with the 164 and 158 acres allowed to be destroyed by the 1988 and 1994 Army Corps permits. However, by the 1996 permit modification, the staff report refers, without explanation or justification, to the permitted destruction of 183.54 acres of wetlands--evidently adding the 13.9 acres to the 169 acres previously permitted to be destroyed. Tab 13 of the Wisdom bluebook identifies the nine wetlands constituting the 13.9 acres, which are entirely in Applicant's south parcel. Except for three, all of these wetlands were characterized as A-quality, meaning that they are in good to excellent condition and “have not been stressed significantly from the biological viewpoint.” B-quality wetlands are in disturbed condition and “are in various stages of biological stress caused primarily by a lowered water table and/or melaleuca invasion.” C-quality wetlands are highly disturbed and “are substantially degraded biologically.” The 13.9 acres of wetlands comprise wetland numbers 23 (0.5 acres), 46 (0.4 acres), 44 (0.6 acres), 37 (0.4 acres), 29 (1.1 acres), 20 [sometimes misreported as 21] (3.9 acres), 30 (2.6 acres), 16 (1.5 acres), and 14 (2.9 acres). Wetland numbers 46 and 29 are B-quality, and wetland number 20 is C-quality. The wetlands shown in District Exhibit 4 and Applicant Exhibit 3 inaccurately portray the wetlands constituting the missing 13.9 acres. A internal memorandum to the file notwithstanding, the District predicated the 1988 Permit in part on the preservation of 112.71 acres of functioning wetlands, including the 13.9 acres that the District now disclaims. The mitigation and compensation required of Applicant in the present case ignored the destruction of these wetlands. The District's analysis of mitigation and compensation in this case was fatally flawed by these two deficiencies. But more deficiencies exist in the District's analysis of wetland impacts. The District relied on faulty data in reviewing Applicant's request for a permit modification. Undercounting the extent of wetlands by at least 21 acres and their condition by an indeterminable amount, Applicant presented to the District a materially inaccurate picture of the wetland resources on the south parcel. Despite disclaimers to the contrary, the District relied on this inaccurate data in reviewing Applicant's request for a permit modification. There are possible problems with 39.5-acre preserve offered by Applicant. This parcel contains less than nine acres of wetlands, including two wetlands that Applicant may already be required to preserve under the 1994 Army Corps permit. At the same time, Applicant's proposal may include the destruction of a third wetland that is to be preserved under the 1994 Army Corps permit. The best rendering in the record of the 1994 Army Corps permit may be Applicant Exhibit 4, which shows eight large wetland areas to be “preserved/enhanced/created.” Two of these are the 10- and 30-acre wetlands on Petitioner’s property, which were preserved in the 1988 Permit. Three of the eight wetlands are in the 115-acre preserve; these were also preserved in the 1988 Permit. The remaining three wetlands to be preserved, enhanced, or created under the 1994 Army Corps permit are in the north end of Applicant’s property. It is difficult to estimate acreage given the scale of the drawing, but the two westerly wetlands are about 4-5 acres each and the easterly wetland is 3-3.5 acres. Subtracting the total preserved acreage of 110 from the acreage identified in the preceding paragraph, the total acreage of these remaining three wetlands is about 12. The two westerly wetlands are in the 39.5-acre preserve that Applicant offers as mitigation in the present case. According to Applicant Exhibit 6, the easterly wetland, or at least the most valuable part of it--the center--is slated for destruction if the District grants the subject permit modification. The proposed destruction of the third wetland is a matter of greater interest to the Army Corps than to the District, but the offer to preserve the other two wetlands really does not provide anything in return for the permitted development impacts because these two wetlands are already preserved under the 1994 Army Corps permit. As the District and Applicant contend, golf course marshes and littoral zones are typically of little environmental importance. Although the 1988 Permit addresses some of these problems, although without supplying any performance standards, golf courses themselves are often conduits of fertilizers and pesticides into the groundwater and nearby surface water. The District and Applicant justifiably question the value of the golf courses approved in the 1988 Permit as wildlife corridors. It is unclear what wildlife would use the corridor, which is surrounded by residential development and bounded by Okeechobee Boulevard. Other factors also militate in favor of Applicant's proposal. But, as the record presently stands, there is no way to find that Applicant has provided reasonable assurance that the proposed development and related mitigation and compensation, as described in the subject permit modification, meet the applicable criteria. The District substantially undervalued the environmental impacts of the proposed modification while substantially overvaluing the environmental impacts of Applicant's proposed contributions in the form of mitigation and compensation. To find adequate assurance as to wetland impacts in these circumstances, where the District did not perform an informed balancing of various impacts in a large-scale development, would permit the District to transform the unavoidably imprecise task of balancing wetland impacts into an act of pure, unreviewable discretion. Listed Species The only relevant listed species onsite is the gopher tortoise, which is a species of special concern. Gopher tortoises use the site to an undetermined extent. Applicant's suggestion that someone brought the tortoises to the site is rejected as improbable. However, due to the resolution of the wetlands issue, it is unnecessary to determine whether Applicant provided reasonable assurance as to the value of functions provided to wildlife and listed species by wetlands. Procedural Issues A. Standing Petitioner has standing due most obviously to flooding considerations. Additionally, the SWM system permitted in 1988 is for the entire 900-acre parcel, of which Petitioner’s parcel is a part. Applicability of ERP Rules The proposed permit modification would substantially affect water resources. The proposed permit modification would substantially increase the adverse effect on water resources. Requirement to Delineate Wetlands Due to the resolution of the wetlands issue, it is unnecessary to determine whether Applicant met applicable requirements concerning the delineation of wetlands. Improper Purpose Petitioner did not challenge the proposed permit modification for an improper purpose. Relevant Provisions of Basis of Review The District revised its Basis of Review after the adoption of ERP rules. Although the order concludes that the District should have applied the ERP rules, and thus the ERP Basis of Review, the order shall discuss both versions of the Basis of Review because the District ignored numerous provisions of both documents in approving Applicant's request for a permit modification. Section 4.6 MSSW Basis of Review requires the District to consider "actual impact" to the site by "considering the existing natural system as altered by the proposed project[,]" including "positive and negative environmental impacts." Section 4.6 requires the District to "balance" these impacts "to achieve a reasonable degree of protection for significant environmental features consistent with the overall protection of the water resources of the District." The proposed permit modification fails to comply with several provisions of Appendix 7 of the MSSW Basis of Review, such as Sections 4.2 requiring a detailed description of the isolated wetlands to be destroyed; 5.1.1(d) favoring the protection of isolated wetlands over their destruction, mitigation, and compensation, which are considered "only when there are no feasible project design alternatives"; and 5.1.6 prohibiting the alteration of water tables so as to affect adversely isolated wetlands. The proposed permit modification also violates various provisions of the ERP Basis of Review. Section 4.0 of the ERP Basis of Review sets the goal of permitting to be "no net loss in wetland . . . functions." Sections 4.2 and following generally require balancing. Section 4.2.1 predicates District approval on a showing that the SWM system does not cause a "net adverse impact on wetland functions . . . which is not offset by mitigation." The ERP provisions first require that the District "explore" with an applicant the minimization of impacts prior to considering mitigation. Section 4.2.2.4(c) specifically imposes monitoring requirements for SWM systems that "could have the effect of altering water levels in wetlands." Sections 4.3.2.2 and following discuss mitigation ratios under the ERP Basis of Review. If the District can explicate a policy to count as mitigation wetlands acreage already preserved under Army Corps permits, the ratios in this case might warrant further consideration, assuming Applicant resubmits an application for permit modification. But it would be premature to consider the ratios on the present record for several reasons. The District has not proved such a policy. If such a policy counts such wetland acreage, on the theory that the District protects function and the Army Corps protects merely the wetland, the record is insufficiently developed as to the functions of the wetlands proposed for protection, as well as the functions of the 13.9 acres of wetlands proposed for destruction. Also, the District has not sufficiently explored project minimization, as is now required under the ERP Basis of Review.
Recommendation It is RECOMMENDED that the District enter a final order denying Applicant's request for a permit modification. ENTERED in Tallahassee, Florida, on June 13, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on June 13, 1997. COPIES FURNISHED: Jeffrey D. Kneen John F. Mariani J. Barry Curtain Levy Kneen 1400 Centrepark Boulevard, Suite 1000 West Palm Beach, Florida 33401 Ronald K. Kolins Thomas A. Sheehan, III Moyle Flanigan Post Office Box 3888 West Palm Beach, Florida 33402 John J. Fumero Marcy I. LaHart Office of Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Samuel E. Poole, III Executive Director Post Office Box 24680 West Palm Beach, Florida 33416
The Issue The issue is whether Respondent Win-Suncoast, Ltd., is entitled to an individual environmental resource permit to construct a surface water management system to serve a proposed shopping center.
Findings Of Fact On April 25, 2006, Applicant filed with District an application for an individual ERP to construct a surface water management system on a parcel located in south Pasco County on the north side of State Road 54, about 1000 feet east of the right-of-way of the Suncoast Parkway. The proposed surface water management system would serve the commercial development of the now-vacant, 36.7-acre parcel. State Road 54 runs from State Road 19 near New Port Richey to Interstate 75; at the Suncoast Parkway, State Road 54 is six lanes wide. The Suncoast Parkway is a limited-access toll road that runs from Memorial Parkway in Tampa to U.S. Route 98 north of Brooksville. The subject parcel is about one mile north of Hillsborough County, four miles east of the terminus of Gunn Highway at State Road 54, and five miles west of State Road The vicinity of this intersection is experiencing rapid commercial development and escalating land values, mostly since the completion of the Suncoast Parkway in 2001. Three parcels adjoin the subject parcel. Immediately north of the subject parcel is the Ashley Glen parcel, which consists of 266.36 acres. Immediately west of the subject parcel and the Ashley Glen parcel is the parcel owned by Petitioner. Petitioner's parcel has about 700 feet of frontage on State Road 54 and runs the length of the western borders of the subject parcel and the Ashley Glen parcel. The northern border of Petitioner's parcel and the Ashley Glen parcel is an abandoned railroad grade. Immediately east of the subject parcel is a DOT-owned parcel, which serves as floodplain mitigation, probably in connection with the Suncoast Parkway or State Road 54. Petitioner challenged the issuance of an ERP in two administrative cases involving the Ashley Glen parcel. In the Blanco I final order, which is dated January 25, 2005, the District denied an ERP for a surface water management system to serve the development of a residential subdivision of over 400 lots. The ERP was denied due to the applicant's failure to conduct an appropriate wildlife survey and to account for the effect of a newly excavated 37-acre borrow pit/pond on a large forested wetland partly occupying a large area on the north end of Petitioner's property. After the developer submitted a revised application, Petitioner challenged the ERP that District proposed to issue. After an administrative hearing, District granted an ERP in the Blanco II final order, which is dated May 30, 2006. Significant differences in the second application were that the applicant had reduced the maximum depth of the borrow pit/pond from 25 feet to 12 feet, under most circumstances, and that the applicant had obtained an appropriate wildlife survey. The subject parcel is about 1.5 miles south of a large tract proposed for acquisition by District and known as the Masaryktown Canal area. This tract would join the smaller Starkey tract, which is also owned by District, with another somewhat smaller publicly owned tract to place much of central Pasco County, from Hillsborough County to Hernando County, in public ownership. Water from the subject parcel drains north toward central Pasco County and then into the Anclote River. The record is in conflict as to the drainage basin in which the subject parcel is located. According to BOR Appendix 6, which is dated May 2, 2006, the subject parcel is in the southern end of the Upper Coastal Drainage basin, which is a vast basin that stretches down the Gulf coast from north of Crystal River to the southern tip of Pinellas County. At points, this basin is not wide, such as at the southern tip of Pinellas County, where, just a few miles inland, the Tampa Bay Drainage basin begins. At other places, the Upper Coastal Drainage basin extends considerably inland, such as at the Pasco County--Hernando County line, where the basin extends about 25 miles east from the Gulf coast, ending only five miles west of the Withlacoochee River. According to District Exhibit 5, which is the District Land Acquisition Priorities Map issued in December 2004, the subject parcel is in the Tampa Bay/Anclote River Watershed. On this map, a large, unnamed watershed, corresponding roughly to the Upper Coastal Drainage basin in BOR Appendix 6, runs to the north of the subject parcel's watershed. At the hearing, District explained that the boundaries shown on District Exhibit 5 identify political subdivisions. The "basins," which are marked in green letters, appear to be political subdivisions, judging from their straight lines, which suggest political, not natural, boundaries. However, the "watersheds," which are marked in larger blue letters, are actual drainage basins. Applicant's ecologist initially believed that the subject parcel was in the Hillsborough watershed. Also, the basin map shown on the District website, District depicts the subject parcel's basin (here named the "Pinellas--Anclote River Basin") as that south of the large basin (here named the "Coastal Basin") encompassing almost the entire coast within the northern area of District's jurisdiction1. Factually, the stronger evidence places the subject parcel in a basin to the south of the large coastal basin described in the preceding paragraphs. However, for the reasons discussed in the Conclusions of Law, the basin depicted in BOR Appendix 6 governs. Although not yet constructed, an important feature of the subject parcel is a road to be known as Ashley Glen Road. This road will nearly bisect the property and will run north from State Road 54 through the Ashley Glen parcel. The road is likely to be developed because it has already been permitted, is subject to a co-developers' agreement, and has already been dedicated to Pasco County. The developer in Blanco I and Blanco II has since sold the Ashley Glen parcel to another developer, which has substantially changed the original plan of development. The new developer has obtained a Development of Regional Impact approval for the development of 1.8 million square feet of office, 450,000 square feet of retail, and 900 multifamily units. However, the new development will incorporate Ashley Glen Road. (For ease of reference, this recommended order continues to use the name, "Ashley Glen" to refer to the parcel, development, and road, although new names may attach to each.) At present, the subject parcel conveys stormwater from south to north. Running along the eastern edge of the parcel is a 20-foot-wide ditch that receives water, by way of a culvert under State Road 54, from the extensive wetland system known as the Hogan wetland, which lies to the south of State Road 54. The ditch was dredged (or re-dredged) about 50 years ago. From south to north, the ditch runs straight in a north-northwesterly direction to about midpoint on the subject parcel, at which point the ditch turns due north and runs in nearly a straight line into and along the eastern part of the Ashley Glen parcel to the north. The northern part of the Ashley Glen parcel widens in an easterly direction, so the ditch bisects this part of the Ashley Glen parcel, prior to turning to the northwest for a short run to the railroad grade. There are two wetlands presently on the subject parcel. In the southeast corner is an isolated wetland known as Wetland B12, which has been described above. The ERP approved in Blanco II authorizes the filling of this entire wetland, whose eastern third would be occupied by Ashley Glen Road. The Blanco II final order determines that Wetland B12 is a "low-quality, small (0.58 acres), isolated, forested wetland that has been impacted by livestock grazing and the intrusion of exotic species." (Recommended Order, paragraph 11.) The Ashley Glen developer originally intended to create on its property an 18-acre littoral shelf to mitigate wetland losses, including the loss of Wetland B12. However, the sale of the Ashley Glen parcel and adoption of a new development plan have delayed the creation of the littoral shelf. Applicant has thus proposed new mitigation in the form of a mitigation bank credit for the impact to Wetland B12. By this means, Applicant seeks permission to fill the wetland and proceed with development without waiting for the new Ashley Glen developer to create the mitigation for Wetland B12. Although the already-permitted loss of Wetland B12 is not an issue in this case, the mitigation for its loss is an issue. Because Applicant is proposing new mitigation for the loss of Wetland B12, it is necessary to determine whether Applicant, using the methodology adopted by District, has provided reasonable assurance that the functional gain from the proposed mitigation for Wetland B12 offsets the functional loss from its filling. The other wetland on the subject parcel is Wetland C12, which is a nine-acre contiguous wetland. The final order resulting from Blanco II authorizes no impact to Wetland C12, so its loss and the mitigation for the loss are issues in this case. The subject application proposes no impact to 4.5 acres of Wetland C12, permanent loss of 3.1 acres, and temporary loss of 1.4 acres (due to the realignment of part of the ditch, which is within Wetland C12). The part of Wetland C12 proposed to be destroyed is its southernmost one-third, which lies in the southern half of the subject parcel, immediately west of the west bank of the realigned ditch. Wetland C12 forms part of the conveyance, from south to north, of water from the Hogan wetland to the railroad grade at the northern boundary of the Ashley Glen parcel. Stormwater then accumulates against the railroad grade, runs west along the grade, backs up to contribute hydration to the large forested wetland at the northwest corner of the Ashley Glen parcel and the north half of Petitioner's parcel, and passes under the railroad grade by way of three culverts near the northwest corner of the Ashley Glen parcel. Wetland C12 has been disturbed by agricultural activities, mostly by the formation of the ditch. There is some testimony concerning a stream at this location, but the record does not support such a characterization. Based on the present record, prior to any disturbance, it is equally possible that water was conveyed by a stream, a slough, or sheetflow. For these reasons, the record does not permit a finding that the ditch is a restorable stream. Wetland C12 has little buffer from surrounding land cover and agricultural uses. According to Petitioner's testimony, which is credited, the dredging (or re-dredging) 50 years ago was the work of a nearby landowner who owned a dragline and used it to alleviate flooding near the Hogan wetland, presumably by deepening and widening the ditch. The hydrology of Wetland C12 has been altered, so that nuisance exotics and upland species are present at locations within the wetland, presumably including the portions of the banks hosting large spoil piles from past dredging. No listed species use Wetland C12, and its potential as habitat corridor is limited due to the extensive residential development that has taken place immediately to the west of Wetland C12, the extensive residential and commercial development taking place to the east of Wetland C12, and the barriers posed by the Suncoast Parkway and 280-foot right-of-way of State Road 54. Applicant has presented to District a plan to construct nine freestanding buildings with surface parking on the subject parcel. The plan is to construct, from north to south on the west side of Ashley Glen Road, a retail space of 5000 square feet and 75 parking spaces on 1.17 acres, a strip of nine retail spaces of 10,500 square feet and 61 parking spaces on 2.02 acres, a fast-food restaurant of 3800 square feet and 40 parking spaces on 1.02 acres, a convenience/retail store of 6000 square feet and 44 parking spaces on 1.66 acres, a fast-food restaurant of 3000 square feet and 44 parking spaces on 1.22 acres, and a bank of 4300 square feet and 38 parking spaces on 0.95 acres. On the east side of Ashley Glen Road, the plan is to construct, from south to north, a restaurant of 4700 square feet and 67 parking spaces on 1.19 acres, a bank of 4120 square feet and 43 parking spaces on 1.16 acres, and a supermarket complex. The supermarket complex comprises a supermarket, an attached strip identified as "Retail B," a restaurant abutting Retail B, an attached strip identified as "Retail C," and a restaurant abutting Retail C. The supermarket building is 237 feet by 205 feet and houses a 46,755 square-foot grocery store, and 1876 square-foot liquor store, and 1125 square-foot vestibule; the supermarket building is served by 243 spaces. Retail B comprises six retail spaces of 6500 square feet and 33 parking spaces; the restaurant is 3000 square feet and is allocated 34 parking spaces. Retail C comprises four retail spaces of 5600 square feet and 28 spaces; the restaurant is 3600 square feet and is allocated 40 parking spaces. The previously described bank and restaurant on the east side of Ashley Glen Road front State Road 54. Behind the drive-through lanes of the bank and parking of the restaurant are nearly all of the parking allocated to the supermarket complex. The supermarket faces State Road 54, although it is about 500 feet from the road and is located in the middle of the eastern half of the subject parcel. The liquor store is incorporated into the southwest corner of the supermarket building, which has a truck dock at the northwest corner. Running in a north-south direction, Retail B runs along the entire west side of the supermarket building. A strip of 40 parking spaces separates Retail B from Ashley Glen Road. Retail C is oriented perpendicular to Retail B and extends, in an east-west direction, off the southeast corner of the supermarket building. Wetland C12 would be occupied by the footprint of the eastern half to two-thirds of the supermarket building, half of the parking in front of the supermarket, half of Retail Strip C, and almost half of the restaurant fronting State Road 54 on the east side of Ashley Glen Road. In terms of area, the footprint of the supermarket and parking occupies about two-thirds of the 3.1 acres of Wetland C12 proposed to be permanently lost. Several components make up the proposed surface water management system, in addition to the rooftops and paving described above. Applicant proposes to realign a portion of the ditch running within Wetland C12, so that the southern half of the ditch will run on the extreme eastern edge of the subject parcel. For a short distance, two-thirds of the width of the proposed ditch is located off the subject parcel and on the parcel owned by DOT to the east. Applicant proposes to triple the width of the ditch to 60 feet and deepen it so that its bottom would be 20 feet wide. Applicant proposes impervious surface for the vast majority of the entire southern two-thirds of the parcel. A stormwater collector system would collect water and convey it north under Ashley Glen Road to the northwest corner of the subject parcel. The water would enter a 3.92-acre pond to be excavated at a depth to hold stormwater for 14 days from the design storm event, which is a 100-year, five-day storm. During this period, contaminants would be removed by evaporation, settlement, and skimming. A littoral shelf abutting the pond on the west will also permit the vegetative uptake of contaminants. Applicant has incorporated wet detention using the conservation design method, a design approved by District for improved stormwater treatment when compared to other wet-detention treatment designs. From the littoral shelf, stormwater will pass through an outflow structure and enter Mitigation Area B, which will be a created 1.4-acre cypress wetland at the very northwest corner of the subject parcel. Applicant will apply wetland topsoil from the dredged portions of Wetland C12 to Mitigation Area B to encourage the growth of wetland species. Stormwater will sheetflow through Mitigation Area B, which will enhance water quality treatment. Although District calculates mitigation credit for an area only up to the seasonal high water line, Applicant proposes, not merely to sod the slope ending at the seasonal high water line, as is the common practice, but instead to plant this area with native species, such as pines, palmettos, and wax myrtles. From Mitigation Area B, stormwater flows, by way of a culvert under Ashley Glen Road, to Mitigation Area A, which will be a created 2.5-acre cypress wetland directly across Ashley Glen Road from Mitigation Area A. Applicant will apply wetland topsoil to Mitigation Area A and plant native species on the upland slopes of the created wetland, which will also treat sheetflow prior to its passing east into the adjacent, undisturbed portion of Wetland C12. The vice-president of the managing partner of Applicant testified in the case. He has 20 years' experience in commercial construction sales and retail development. He has developed seven shopping centers anchored by a grocery store (Anchored Centers) and six shopping centers without a grocery- store anchor (Unanchored Centers). The corporate managing partner has developed 43 Anchored Centers and is developing five more. The site-selection process requires analysis of land costs, construction costs, prevailing market rents, outparcel values, zoning, title, environmental issues, and geotechnical issues. Analysis of the locational factors are especially important. These include traffic, residential development, and demographics. The intersection of the Suncoast Parkway and State Road 54 is ideal for the development of an Anchored Center. In the past seven years, 10,000 residential units have been developed in the State Road 54 corridor between State Road 41 and the Suncoast Parkway. The southeast quadrant of this intersection is being developed with mixed uses, including office and retail. A large parcel immediately east of the DOT parcel and Ashley Glen parcel is being developed with commercial uses. The southwest quadrant is being developed with a Super Target. Older residential areas exist to the east and southeast of the subject parcel. Applicant entered a contract to purchase the subject parcel in August 2002 and closed on the purchase in November 2003. It has a contract with Sweetbay Supermarket for the grocery store. The appeal of the Anchored Center is in the synergy between the anchor--the supermarket--and the outparcels. The proposed Anchored Center would be a one-stop destination for the consumer seeking the goods and services associated with a supermarket, bank, restaurant, and allied retail and may thus shorten or reduce the number of motor-vehicle trips. Raw land in the vicinity of the intersection of the Suncoast Parkway and State Road 54 has been appreciating at a monthly rate of about three percent during the past four or five years. Parcels in Anchored Centers command a considerable premium over similar parcels in Unanchored Centers, and substantially different business risks attach to each kind of development. One of the differences between the Anchored Center and Unanchored Center is the former's requirement of additional parking. Given this requirement, there was no design modification that would accommodate a shopping center and parking without destroying wetlands. Although Sweetbay Supermarket has a template for a smaller building than the one proposed on the subject site, the smaller building is typically reserved for urban settings, and nothing in the record suggests that even the smaller building, with surface parking, would spare the wetlands completely. In its site-planning exercises, Applicant tried to reduce wetland impacts by moving the supermarket to different locations on the subject parcel. The supermarket will not fit on the west side of Ashley Glen Road. On the east side, Applicant moved it as far west as it could to avoid as much wetland impact as possible given the location of the supermarket at the midpoint of the east side of the subject parcel. The present location represents the best accommodation of the Wetland C12 and the commercial development, at its proposed intensity, that Applicant could find after 8-10 reconfigurations of the site improvements. Given the shape of the subject parcel and Wetland C12, the proposed midpoint location impacts Wetland C12 less than any other location, except right at the northeast corner of the intersection of Ashley Glen Road and State Road 54. However, obvious marketing problems arise with this location. Sweetbay Supermarket understandably desires the supermarket to face State Road 54 to attract business. If the supermarket were located at the northeast corner of these two roads, there would be no parking in the front, requiring the customers to enter from the back, or the back of the supermarket would face State Road 54. In designing the site, Applicant reduced some retail space and associated parking to reduce wetland impacts. At the present midpoint location, the elimination of Retail B and Retail C would permit Applicant to move the building to the west, but this would only slightly reduce the wetland impacts because substantial wetland impacts would occur to the south under the footprint of the parking. Similarly, a parking garage would permit Applicant to avoid those substantial wetland impacts, but not the smaller, but still significant, area of wetland impacts under the footprint of the east side of the supermarket building and Retail C. Of course, Applicant could combine these two modifications--elimination of Retail B and Retail C with the relocation of the supermarket building to the west and the construction of an elevated parking garage on the western half of the proposed footprint of the parking area in front of the supermarket building. Applicant contends that these modifications are not economically practicable. Undoubtedly, parking garages are not typically associated with nonurban development. The vice-president of the managing partner admitted that he had not priced such structures, but estimated that each space in a parking deck would cost 10 times more than each space at grade. With somewhat more authority, he also testified that the loss of any more retail space would leave the development economically unfeasible. Sweetbay Supermarket's declared and presumed preferences also play a role in evaluating this substantial design modification. Sweetbay Supermarket prefers retail on both sides of the supermarket, and, given its need for visibility from State Road 54, it may be presumed not to favor the presence of a multi-story parking garage between its grocery store and State Road 54. Again, placing the parking garage behind the supermarket would gain visibility, but raise the prospect of the back of the supermarket facing State Road 54 or the customers entering the store from the back. These are all plainly unacceptable prospects, without regard to Applicant's notions of economic feasibility or return on investment. Similar considerations apply to the possible realignments of the ditch. In its present alignment, the ditch would be occupied by the footprint of the west half of Retail C, the northeast corner of the supermarket building, as well as parking and paved roadway associated with the supermarket and the restaurant fronting State Road 54 on the east side of Ashley Glen Road. Because the ditch does not extend nearly as far to the west as does Wetland C12, it would be possible to preserve the present ditch by eliminating Retail B and Retail C and shifting the supermarket building to the west with the "extra" parking gained by the elimination of the two retail strips probably offsetting the lost parking in front of the supermarket. But this is a lot to ask to preserve a conveyance that, on this record, does not rise above the homely level of a ditch with its attendant functional limitations, especially when the new ditch will probably relieve existing flooding around the Hogan wetland. Applicant's ecologist applied the Uniform Mitigation Assessment Method (UMAM) to assess Wetlands B12 and C12 and the mitigation areas. UMAM and its applicability to this case are discussed in the Conclusions of Law. Generally, UMAM provides a methodology to determine the functional loss of permanent and temporary wetland impacts and the functional gain of mitigation and ensure that the latter equal or exceed the former. For Wetland B12, Applicant's ecologist determined that its functional value, based on location and landscape support, was 5 out of 10 points due to the isolated nature of the wetland in a pasture, adjacent to a tree farm and absent any buffer. Invasives and exotics are in the adjacent community. Based on water environment, the ecologist scored Wetland B12 with 7 out of 10 points due to the presence of distinct water indicators, although the wetland appears to be dependent on rainfall and had suffered degradation from cattle. Based on community structure, the ecologist scored Wetland B12 with 6 out of 10 points due to its normal appearance for a cypress dome, but evident lack of natural recruitment, presence of nuisance exotics such as primrose willow and Brazilian pepper, and severe degradation from cattle and other agricultural uses. The ecologist's assessment of the permanent impact to 3.1 acres of Wetland C12 and temporary impact to 1.4 acres of the ditch within Wetland C12 followed the same approach, except that the temporary impact to the ditch required an additional step in the process. Applicant's ecologist scored the impacted area of Wetland C12, including the 1.4-acre ditch, with an average functional value of 6.67, based on scores of 7 for location and landscape support, 6 for water environment, and 7 for community structure. The location and landscape support are adversely impacted by the reduced complexity of surrounding uplands, but facilitated by the undeveloped state of the immediate vicinity that would allow use by small- to medium- sized wildlife. The ecologist noted the hydrological connection served by the ditch/wetland network and the narrow riparian corridor provided by this arrangement. The function of the water environment is heightened by the fact that most of the water environment is intact, but suffers from adverse impacts to the hydrology and water quality from the construction of the ditch and conversion of surrounding land cover to pasture and roadway. The community structure is facilitated by the presence of canopy vegetation of cypress, pop ash, and laurel oak, but adversely impacted by the presence of Brazilian pepper in the subcanopy. The additional step required in the analysis of the temporary impacts to 1.4 acres is the projected functional value of the relocated ditch. As compared to the present ditch, the re-created ditch scored one less point in location and landscape support due to the further reduction in adjacent uplands and resulting inhibition on use by medium-size wildlife that currently use the site, one less point in water environment due to some changes in microclimate, nutrient assimilation, and flow characteristics that may adversely affect current wildlife composition, and four fewer points in community structure due to removal of the canopy, subcanopy, and groundcover with the associated seed banks and vegetative growth that could recruit similar species to match existing composition and structure. Based on the foregoing, the ecologist concluded that the permanent functional loss to Wetland B12 was 0.35 units, the permanent functional loss to the 3.1 acres of Wetland C12 was 2.07 units, and the temporary functional loss to the 1.4 acres of Wetland C12/the ditch was 0.28 units, resulting in permanent functional losses of 2.42 units and temporary functional losses of 0.28 units, for a total functional loss of 2.70 units. For onsite mitigation of these functional losses, Applicant proposes Mitigation Areas A and B. Mitigation Area B, which is the 1.4-acre forested wetland to be created on the west side of Ashley Glen Road, received a score of zero in its present undeveloped state, and scores of 4 for location and landscape support, 7 for water environment, and 6 for community structure after it is created. The relatively low score for location and landscape recognizes the limited connectivity (through culverts) to other existing and proposed wetlands, although the lack of barriers for use by birds and aquatic species is a functional advantage. The relatively high score for water environment reflects the hydrological interdependence of Mitigation Area B with the stormwater collection system and created wetlands and the relative reliability of these sources of hydration. The score for community structure reflects the increases in microtopography resulting from the design of high and low wetland areas and the planting of species to create three vegetative strata within the created wetland. The ecologist assigned a time lag factor of 2.73 for this created wetland. Derived from Florida Administrative Code Rule 62-345.600(1)(d), this time lag factor correlates to a time lag of 36-40 years to establish the mitigative functions for which the mitigation site is given credit. The ecologist assigned a risk factor of 2 for this created wetland. Derived from Florida Administrative Code Rule 62-345.600(2), this risk factor correlates to a moderate risk of failure of attaining the functions predicted for the mitigation site. Applying the risk and time lag factors to Mitigation Area B, the ecologist calculated a functional gain of 0.15 units for this 1.4-acre mitigation site. The ecologist used the same methodology for Mitigation Area A, which is the 2.5-acre created wetland across Ashley Glen Road from Mitigation Area B. The ecologist assigned this created wetland a 6 for location and landscape support, a 7 for water environment, and a 7 for community structure. This wetland scored 2 points higher than Mitigation Area B for location and landscape support because it is not isolated by the road and culverts from the unimpacted area of Wetland C12 and offers more upland buffer for small wetland-dependent species. Mitigation Area A scored 1 point higher for community structure due to the likelihood of natural recruitment of seeds from the adjacent unimpacted wetland. For water environment, Mitigation Area A and Mitigation Area B received the same score due to their common characteristics. The ecologist applied the same time lag factor to Mitigation Area A as he did to Mitigation Area B. However, the risk factor was one increment less than moderate, probably due to the hydrological advantages that Mitigation Area A enjoys over Mitigation B due to its pre-existing hydric soils and proximity to the unimpacted wetlands of Wetland C12. Applying the risk and time lag factors to Mitigation Area A, the ecologist calculated a functional gain of 0.35 units for this 2.5-acre site. Applicant's ecologist then calculated the functional gain from the enhancement of the 1.4-acre Wetland C12/ditch. He found an increase of 0.13, as compared to the current value, based on a relatively strong score for the enhanced location and landscape support, average score for the enhanced water environment, and relatively weak score for the enhanced community structure. The enhanced system enjoys functional advantages from the planting of three strata of vegetation along the ditch and emergents in the channel. The ecologist applied a time lag factor of 2.18 (meaning 26-30 years) and a moderate risk factor of 2.0 to obtain a final score of 0.03 acres for this enhancement mitigation. The functional gains and losses for the onsite wetland impacts and mitigation, as determined by Applicant's ecologist, are supported by the record, and his analysis of these losses and gains from the onsite creation and enhancement mitigation is accurate. Next, Applicant purchased a conservation easement as offsite mitigation. This easement is on what is known as the Marr Parcel. The Marr Parcel is a 67.49-acre parcel that sits almost in the middle of a large publicly owned area that runs nearly 30 miles along the coast, from Weeki Wachee to the south to Crystal River to the north. Situated in the north-central part of this large area is the District-owned Chassahowitzka River and Coastal Swamps tract (Chassahowitzka Tract). The Marr Parcel is at the southern end of the Chassahowitzka Tract, about four miles from the Gulf of Mexico. The Marr Parcel is about 33 miles from the subject parcel. The Marr Parcel is in the large coastal basin that, according to BOR Appendix 6, includes the subject parcel and, according to District Exhibit 5, is the basin to the north of the basin that includes the subject parcel. At the end of Zebra Finch Road, the Marr Parcel is surrounded by pristine forested wetland habitat that forms part of an important travel corridor for numerous species, including the Florida black bear. This is a sustainable population of Florida black bears, so this habitat is of critical importance. The forested habitat is a combination of cypress and mixed hardwoods. The larger publicly owned area enveloping the Marr Parcel includes almost every significant habitat present in Florida. Other parcels preserved by similar means are directly north of the Marr Parcel. Applicant's ecologist raised the Marr Parcel's score by 1 point for location and landscape support and 1 point for community structure, as a result of the purchase of the conservation easement. The parcel's score for water environment was unchanged by the purchase of the conservation easement. Taking the modest gain from the purchase of the conservation easement, the ecologist applied the preservation adjustment factor of 0.60 to reduce this gain further and then applied a time lag factor of 1.0, indicative of a time lag of one year or less, and a risk factor of 1.25, indicative of the smallest incremental risk above no risk, to determine a functional gain of 2.16 units for the preservation mitigation involving the Marr Parcel. Petitioner contends that development of the Marr Parcel was unlikely, even without the conservation easement purchased by Applicant. Without detailed analysis of site characteristics and regulatory controls applicable to the Marr Parcel, it is impossible to evaluate this contention, except to note that the ecologist took very little credit for the transaction. The smallest credit is one point in all three categories; the ecologist took two points. The functional gain for this preservation mitigation, as determined by Applicant's ecologist, is supported by the record, and his analysis of this gain from the offsite preservation mitigation is accurate, provided District clarifies the ERP, which describes the Marr Parcel in detail, to require that Applicant purchase the conservation easement in the Marr Parcel as part of the required mitigation. Lastly, Applicant turned to the Upper Coastal Mitigation Bank (UCMB) to purchase 0.4 acres of forested- wetlands credit. This mitigation bank, which is administered by Earth Balance, pertains to property (UCMB Tract) that is just north of the Chassahowitzka Tract, immediately south of Homosassa Springs. A few months prior to the hearing, District permitted the UCMB for 47.64 functional gain units, for the purpose of providing mitigation bank credits to ERP applicants. District has approved UCMB for freshwater forested wetlands credits, among other types of credits. The UCMB Tract is about seven miles north of the Marr Parcel and, thus, about 40 miles north of the subject parcel. The UCMB Tract is in the large coastal basin that, according to BOR Appendix 6, includes the subject parcel and, according to District Exhibit 5, is the basin to the north of the basin that includes the subject parcel. Based on the foregoing, Applicant realized a functional gain of 0.52 units from the onsite creation and enhancement mitigation, 2.16 units from the offsite preservation mitigation from the Marr Parcel, and 0.40 units from the purchase of units from UCMB, for a total functional gain of 3.09 units. Pursuant to UMAM, the 2.70 functional loss units are exceeded by the 3.09 functional gain units, so Applicant has provided adequate mitigation. Applicant provided reasonable assurance that the proposed activity will not cause adverse impacts to the storage and conveyance capacity of surface waters. As noted above, Applicant proposes to expand the conveyance capacity of the ditch by substantially widening and deepening it, which will probably alleviate some of the longstanding flooding around the Hogan wetland. With respect to Petitioner's parcel, Applicant will place a liner on the west side of the pond, so as to prevent adverse impacts to Petitioner's parcel from base flow. Applicant will add a swale along the west side of the subject parcel to prevent adverse impacts to Petitioner's parcel from stormwater flow. The engineer's analysis in particular does not reveal flooding at the northwest corner of the Ashley Glen parcel, from where Petitioner's wetlands draw hydration. No testimony revealed whether Applicant's engineer performed pre- and post-development analysis of flows at the point at which the re-created ditch leaves the subject parcel at the DOT floodplain-mitigation site. Nothing in the record suggests that the proposed activities will cause flooding of this site, and DOT will likely perform its own analysis prior to granting Applicant a sufficient interest to dredge part of the realigned, enlarged ditch on DOT property. The proposed activities will fill 8.48 acre-feet of floodplain, but mitigate this loss with 10.02 acre-feet of excavation. Considered with the increased capacity of the drainage ditch, Applicant proposes to increase flood storage. Applicant has provided reasonable assurance that the proposed activities will not adversely impact water quality. The water-treatment components of the proposed surface water management system have been described above. Applicant provided reasonable assurance that the proposed activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Some minor loss of use by small- and medium-size wildlife may be expected from the loss of 3.1 acres of Wetland C12, but the presence of State Road 54 and imminent development of the Ashley Glen parcel mean that Wetland C12 can provide no meaningful travel corridor. Degraded adjacent uplands further reduce the value of Wetland C12 as habitat for such wildlife. The created pond will provide habitat for certain birds, and the offsite mitigation will provide functional gain in terms of wildlife habitat. Changes in fish habitat from the relocation of part of the ditch and dredging of the ditch are also negligible, based on limited utilization of the present ditch and enhanced utilization potential of the new ditch in terms of a more suitable bank, which will be protected from erosion by matting, and the addition of appropriate vegetation, including emergents in the channel. For the reasons set forth above, Applicant has provided reasonable assurance that the proposed activities will not cause adverse secondary impacts to the water resources. Although the post-development wetlands are unbuffered, the secondary impacts of construction are addressed by the usual construction devices of turbidity curtains and hay bales, and the secondary impacts of the ultimate use of the Anchored Center are adequately addressed by the by the subject surface water management system, especially with respect to water quality treatment. District's senior environmental scientist disclaimed the existence of post-development secondary impacts, evidently reasoning that Wetlands B12 and C12 had already been impacted. As discussed in the Conclusions of Law, the secondary impacts are the activities closely linked to the construction of the project. In this case, the project is the surface water management system to serve the development of the Anchored Center, and the obvious secondary impact is motor vehicle traffic on the subject parcel. However, the water-quality analysis addresses this secondary impact. Subject to one exception, Applicant has provided reasonable assurance that the proposed surface water management system will perform effectively and will function as proposed and that an entity with the requisite financial, legal, and administrative capabilities will conduct the proposed activities. The exception is that District may not issue the ERP until Applicant obtains from DOT a legal instrument, in recordable form, granting Applicant and its assigns all rights necessary to construct, maintain, and operate the portion of the realigned ditch that will be located in the DOT floodplain mitigation parcel. Based on the Conclusions of Law, which necessitate the acceptance of the basin depictions in BOR Appendix 6, Applicant has provided reasonable assurance that the proposed activities will not cause adverse cumulative impacts upon wetlands and other surface waters. However, if the subject parcel were in the basin to the south of the large coastal basin, Applicant has not provided reasonable assurance that the proposed activities will not cause adverse cumulative impacts because it has not undertaken any cumulative-impact analysis. Based on the foregoing and subject to the two conditions stated above, Applicant has provided reasonable assurance that the proposed activities in, on, or over wetlands or other surface waters are not contrary to the public interest.
Recommendation It is RECOMMENDED that the Southwest Florida Water Management District issue to Win-Suncoast, Ltd., the environmental resource permit, subject to the two conditions identified above. DONE AND ENTERED this 14th day of February, 2008, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2008.
