Findings Of Fact The Department of Environmental Protection is the state agency responsible for permitting involving water quality and the dredging and filling of wetlands as defined in Chapter 403, Florida Statutes. Petitioner, Stephen J. Dibbs, owns 20.03 acres of land located at the southeast corner of the intersection of Dale Mabry Highway with Hoedt Road, north of Tampa in Hillsborough County, Florida. The property consists of 11.27 acres of non-jurisdictional uplands and 8.76 acres of forested jurisdictional wetlands which divide the property somewhat diagonally in a northwest to southeast direction. There are uplands along the entire western boundary of the property along Dale Mabry Highway and Zambito Road, as well as in the southwestern portion of the property. The property is surrounded by commercial, residential and multifamily development and is zoned by Hillsborough County for commercial use. The deeper portions of the wetlands area are dominated by cypress trees and the transitional wetlands areas include laurel oak, American elm, red maple and dahoon holly. These wetlands currently provide habitat for fish and other wildlife and provide for water storage and treatment. This is a high quality forested wetlands which performs the valuable wetlands functions outlined above. It is subject to the Department's permitting procedures. Mr. Dibbs purchased the property in 1989 knowing at the time of purchase that jurisdictional wetlands were located thereon as defined by a previously conducted Departmental jurisdiction determination. He also knew that at the time of purchase there was no vehicular access/egress to the property via Hoedt Road. On April 26, 1994, Mr. Dibbs submitted a revision to his previously submitted application No. 292103383 for a permit to fill a portion of the wetlands on his property described above. Thereafter, on August 19, 1994, the Department issued its Intent to deny the requested permit and on August 31, 1994, Mr. Dibbs filed a timely Petition to contest the agency action. The parties agree, and it is found, that: The subject project does not occur within an Outstanding Florida Water. The project will not negatively impact any threatened or endangered species. The project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The project will not adversely affect significant historical and archaeological resources, Mr. Dibbs proposes to fill 2.014 acres of wetlands located at the western end of his property. The impacts to this filled parcel will be permanent in nature. The project, as originally envisioned in the March, 1992 application by Mr. Dibbs, called for the filling of approximately 4 acres of wetlands for a large commercial development and a "Par 3" golf course. In the permitting process, the Department must first determine if the project is in the public interest, and the cumulative impact of the proposed project is a part of that public interest determination. Efforts at minimization of the proposed project's impact on the wetlands are made at that time and the applicant's proposal for mitigation cannot be considered until he has established he cannot otherwise meet the statutory standards by minimizing the proposed impacts to wetlands by avoiding them or by reducing the amount of wetlands area impacted. In the course of negotiations with and at the request of the Department, Mr. Dibbs modified the project to eliminate the golf course and reduce the size of the commercial development, which resulted in a decrease in the amount of fill from approximately 4 acres to the presently sought 2.014 acres. As a part of the permitting process, and in support of mitigation efforts, the Department suggested five modifications to Mr. Dibbs which it felt would make the project permittable. These were: Further minimization of wetlands impacts by a re-orientation of buildings, roads and parking areas/spaces or a reduction in the number of commercial sites to allow the remaining operations to be better fitted into available uplands with less spill-over into wetlands. Limitation of impact to the fringe areas of the wetlands rather than the interior. Investigating the feasibility of moving the Pier One Import or any other facility back from Dale Mabry and turning Chick-Fil-A and China Coast sideways to lesser their direct impacts. Maintain the concept of vertical retaining wall use along the wetlands construction line as proposed. Mitigate for the reduced wetlands encroach- ments at a creation ratio of 1.5:1 with tree spade transplants at 15 foot centers, interplanted with 3 gallon or larger pot plants to create a 10'X10' overall plant spacing, and the dedication of the mitigation area and all remaining wetlands to the Department in a perpetual conservation easement. Of these proposals, the vertical retaining wall, (4), and the submission of a mitigation plan, (5), were part of Petitioner's April, 1994 modification. There remains, however, some resistance to the dedication of the wetlands and mitigation area by a perpetual easement. The Department admits that the turning of the Chick-Fil-A and China Coast facilities sideways is not practicable. Since the remaining suggestions essentially involve eliminating two of the four commercial sites, Mr. Dibbs, determining that such action would render the development economically infeasible, rejected those suggestions. The Department suggested modifications to the Dibbs project which limited the wetlands fill to approximately 0.5 to 0.7 acres by having only two restaurants with a truck access from Hoedt Road. While there is an issue as to the economic viability of the Department's suggestion, that suggestion is practicable from an engineering standpoint, notwithstanding the opinion of Mr. Mai, Petitioner's expert. It would also meet both the parking requirements of the Hillsborough County Land Development Code and the corporate requirements of General Mills, the owner of such mid-priced sit-down restaurants as Olive Garden and China Coast, as proposed here. Nonetheless, after Petitioner's initial application was filed in 1992, consistent with the Department's mitigation suggestions, Mr. Dibbs did make certain modifications to the proposed project in an effort to minimize its impact on the environment. This accounted for the elimination of the previously considered miniature golf course and a reduction in size of the development which reduced the required amount of fill from 4 acres to 2.014 acres. The project, as described in the current application under consideration, is what Petitioner considers the smallest the project can be made and still be economically feasible. As presently envisioned by Petitioner, the development project will encompass approximately 8 acres and will include four (4) freestanding commercial facilities, including two sit-down restaurants, an Olive Garden Restaurant and a China Coast Restaurant; a fast food restaurant, Chick-Fil-A; and a retail facility, Pier One Imports, all along the western boundary of the property fronting Dale Mabry Highway and Zambito Road. The Chick-Fil-A would be located in the northwest corner of the development almost entirely on what is presently forested wetlands. The Pier One Imports store would be on what is presently forested wetlands, south of the Chick-Fil-A and north of the China Coast restaurant which, itself, would involve some impacts to forested wetlands. The Olive Garden restaurant would be located on the southwest corner of the property south of the China Coast. It is the only building in the proposed development which would not involve some wetlands impact. Due to the length of time involved so far in obtaining permits for the development, both Pier One and General Mills, the parent for China Coast and Olive Garden, have withdrawn their agreements with Mr. Dibbs to utilize his property though they remain interested in them. At one point, General Mills offered Petitioner $1.6 million for the Olive Garden and China Coast properties. Mr. Dibbs has entered discussions with other prospective tenants but all have space requirements similar to those envisioned in the present planned development. He has found, generally, a greater demand for space than there are sites available. These space requirements convince him that the minimum encroachment that would satisfy his development plans is the 2.014 acres proposed. Any further reduction in encroachment would result in a need to change the development proposal which, Mr. Dibbs claims, would negate the economic viability of the development. In order for minimization to be effective and not inappropriate, it must result in the applicant still having a project which is economically viable. Economic viability means that the estimated value of the project as completed under minimization would be equal to or exceed its estimated cost. The Department's evidence tends to indicate that a project limited to an Olive Garden restaurant and a China Coast restaurant would be economically viable. Further, the Department contends that same evidence indicates that a commercial project limited to the two out parcels, at the southern portion of the project site would also be economically viable and profitable, if not as profitable as Petitioner originally anticipated. That contention has not been shown to be so. Dr. William C. Weaver, Barnett Professor of real estate and business valuation at the University of Florida and a forensic economist, utilizing figures provided by Petitioner, by deposition indicated that Petitioner had, as of the date of the testimony, incurred development costs totaling $746,000. Weaver also estimated that fill costs for the project as modified would be an additional $100,000. Wetlands replacement and monitoring, (mitigation) would cost an additional $100,000, and the cost of obtaining access to Hoedt Road would be an additional $100,000. For the purposes of calculating a rate of return, Dr. Weaver assumed the development would be limited to the two parcels on the southern portion of the site, with access to Hoedt Road down the length of the site in some manner. These sites, he concluded, have a present value of $850,000 even though not all costs have as yet been incurred. Future development of the two parcels would, in Weaver's estimation, result in a value for the project of $1.6 million. The rate of return, then, with a present value of $850,000 and a future value of $1.6 million, would be approximately 9.5 percent to 10 percent. If an additional sum of $200,000 for fill and mitigation is figured in, Dr. Weaver opines the Petitioner's rate of return would still be in the 9.5 percent to 10 percent range. Accepting Dr. Weaver's analysis and the cost estimates on which it is based, for the purpose of argument, then the project, modified as proposed by the Department, would be profitable. It should be noted here that the cost figures utilized by Dr. Weaver in his calculation were those provided by Petitioner. There is a high demand for commercial property in the vicinity of Petitioner's proposed project. Petitioner's site is one of the few remaining undeveloped parcels in the north Dale Mabry corridor, a high per capita income area which constitutes a market area encompassing a three to five mile radius from the property. Even with Pier One and General Mills pulling out, there is evidence that another restaurant chain, Golden Corral, has offered to construct a restaurant on the southern portion of the property. The western edge of the property, for the most part, abuts Dale Mabry Highway with the exception of a small section to the south which abuts Zambito Road. Zambito Road, a two-lane, county maintained, road extends northward from Ehrlich Road to a point where it merges with the northbound lanes of Dale Mabry Highway, at that point a twelve lane divided state highway. Vehicular access and egress to and from the proposed project would be, in part, via Zambito Road. Northbound traffic on Dale Mabry could enter the project by turning right, an access presently approved by the Department of Transportation. As presently designed and approved, however, the Dale Mabry entrance would be a narrow and difficult access for service vehicles. Patrons could exit the project into the northbound lane of Dale Mabry only by a right hand turn, and only if a change in permitting by the Department of Transportation would allow access onto Dale Mabry. That access would not involve any wetlands impact and this proposal is the subject of a current application to the Florida Department of Transportation on which administrative hearing is currently pending. If and when approved, any access or egress from or to Dale Mabry, calls for a fifty foot turning radius. Another source of access to and egress from the project can be via Hoedt Road, a two lane road maintained by the county, which runs east and west north of Petitioner's property line and to which Petitioner currently has no legal right to vehicular access. The intersection of Hoedt Road and Dale Mabry Highway is controlled by a signal light and is located to the north of the northwest corner of the proposed development. Petitioner expects to purchase rights to vehicular access to his development from Hoedt Road from the owner of the narrow strip which runs between the road and the northern boundary of the property. The proposed access-egress point would be located along the northern property line approximately 230 feet due east of the Hoedt/Dale Mabry intersection. Through this access, a customer traveling north on Dale Mabry could enter the development by turning right onto Hoedt Road while a customer travelling south on Dale Mabry would do so by turning left, (east), onto Hoedt Road. In both cases, the customer would then turn right, (south), into the development. A customer leaving the development via the northern access would turn either north or south onto Dale Mabry at its intersection with Hoedt Road. The Hoedt Road access point would be the primary means of access-egress for semi-trailers/commercial vehicles servicing the businesses in the development. The existing site plan provides for these vehicles to proceed directly behind the buildings for service. A third access-egress point exists or could exist off of Zambito Road at the southwest corner of the property. A customer northbound on Zambito Road could make a right turn into the proposed development or could exit the development by turning either left or right onto Zambito, the former heading south on Zambito and the latter travelling north a short distance to where Zambito joins with Dale Mabry. This access could, with modification of the development plan, allow a semi-trailer to enter and exit the site from onto Zambito Road to provide service to the businesses situated on the site. Mr. Dibbs finds this an unacceptable arrangement, however. He claims the Zambito Road entrance is a difficult intersection since it is not served by a traffic signal. As currently designed, the existing plan calls for a total of 430 parking spaces while the county only requires a minimum of 344 spaces for the four businesses. The parking scheme as proposed was considered necessary to meet the requirements expressed by Mr. Dibbs' proposed tenants. It is likely that other, substitute, tenants would have similar parking requirements. The Department has proposed a modification to Petitioner's development plan which would eliminate approximately 30 parking spaces proposed. This would still provide a number of parking spaces sufficient to meet both the county's minimum requirements and the reasonable requirements of proposed tenants. The Department has suggested that access to the development by commercial vehicles be by the Hoedt Road entrance. It would modify the access road in such a way that it would "snake" around the existing wetlands. This would, however, result in a commingling of semi trucks, smaller delivery vehicle, and customer vehicles within the interior of the development and this would not be desirable either from a safety or a business standpoint. Ease of access, as opposed to mere access, has, in the past, been considered by the Department as a valid evaluator of practicability. For this reason, and based on many of the access considerations mentioned above, Petitioner's engineering expert, Mr. Mai, considered that access from Hoedt Road must, of necessity, be straight in to the back of the buildings, and, assuming there are to be the four buildings as proposed, this position is unrebutted by the Department. Elimination of the Hoedt Road access would be impractical. Another factor to be considered on the issue of the economic practicability of minimization is that of visibility. Commercial enterprises generally must be visible to draw customers so as to be economically viable. Dale Mabry Highway is a high volume thoroughfare. The businesses on the development, medium price sit-down restaurants and an import store, all of a chain variety, cater not only to a destination oriented clientele but also to a spontaneous clientele as well. It is imperative, therefore, that these businesses be able to be seen from Dale Mabry. Petitioner claims that the elimination of the two northern commercial sites as a part of minimization would adversely affect the visibility of the two remaining sites. First, he claims, the cypress stand in the northwest portion of the wetlands would interfere with the vision of those coming down from the north. He also asserts that potential customers proceeding in a southerly direction on Dale Mabry would not be able to see the remaining businesses in enough time to make an entrance choice at Hoedt Road. They would, therefore, have to proceed south on Dale Mabry for a significant distance to the next signal, turn east and proceed to Zambito Road, and turn north again to come up Zambito Road to either an access point on the far south end of the property or to the turn right off the northbound lane of Dale Mabry. Taken together, these factors and the reduction in the number of businesses on the development site would discourage customer use, and in the opinion of Petitioner's economist and development consultant, would result in the two remaining businesses not surviving more than one year. This point appears well taken. The Department has also suggested that Petitioner replace pavement parking at the site with grassed parking; grade the landscape strips and parking medians for storm water treatment; utilize porous concrete for parking; utilize vertical as opposed to sloped retaining walls: and provide mitigation at a 1.5:1 ratio. The use of grassed parking was rejected on the basis of a safety hazard to women wearing high heeled shoes. The other suggestions were accepted by Petitioner. Some consideration was given to the fact that the property owned by Mr. Dibbs at this site includes 5.12 acres of uplands at the northeast corner of the property of which at least one acre would be needed for the proposed use as the mitigation area. The northern property line runs almost due east 1309.04 feet. The most westward point of the northeast uplands crosses the northern property line just about half way back from Dale Mabry Highway. The uplands in question is currently zoned for one single family home per acre but if re-zoned might provide for two homes per acre. The surrounding land use, however, makes re-zoning unlikely. In addition, access to that property is unavailable unless a road were to be built across the wetlands from Dale Mabry. The cost of this road construction, the additional land needed for mitigation of the wetlands used for the road, and the cost of development infrastructure would make it impracticable to use the back uplands for anything. The term "economic justification" as construed by the Department includes the access, visibility and parking consideration previously discussed in addition to other regulatory requirements and like issues. The Department has taken the position that any type of economic return on investment or cost benefit analysis is not an appropriate consideration in a permitting decision. Petitioner contends that the additional minimization suggestions proposed by the Department, when considered in the context of engineering, safety, design and development, and the minimal potentiality for continued viability of any business located on the property encumbered by those suggestions, are not practicable. The failure of the Department to consult with its staff economist regarding this project, and the paucity of demonstrated departmental familiarity or experience with economics, at least among permitting personnel, may lend some credence to this argument. The Department has, until now, followed a policy of consistency in treating applications similar to the instant application. Generally, requests for minimization include such items as vertical retaining walls, use of porous concrete, bridges, culverts and other matters, all of which fall short of requiring actual redesign of the proposed project. In the instant case, the Department proposes the elimination of approximately 50 percent of the project as minimization before considering mitigation. Turning to the issue of mitigation, notwithstanding the predictions of success by Petitioner, it appears that only the smallest part of any mitigation attempted is successful in the long run, and that for the most part, wetlands lost through dredging and filling is not replaced. Nonetheless, the parties, including the Department, continue to work within the fiction that mitigation can compensate for the destruction of existing wetlands when an applicant is otherwise unable to meet the criteria set forth in the statute. There can be little doubt that this project, as applied for, may adversely affect habitat and their wetlands functions of storm water attenuation, treatment and storage. It is of a permanent nature. The purpose of mitigation is to offset the impact of development. Whereas here the Department has indicated that only 3.021 acres of mitigation wetlands need be created to offset the 2.014 acres of wetlands destroyed, a 1.5:1 ratio, Petitioner proposed to create 4.49 acres of new wetlands, a 2.25:1 ratio without the suggested conservation easement. The proposal submitted by Petitioner, he believes, will be successful. This remains to be seen and success is not at all guaranteed. Presuming success, however, for the sake of discussion, the mitigation site will be directly adjacent to and contiguous to existing wetlands and immediately will be come a part of and subject to Department wetlands regulatory jurisdiction. If successful, the proposed mitigation would offset the adverse impacts of the project. Still another area for consideration is that concerning storm water runoff. Storm water is currently collected from Dale Mabry Highway and drains into a ditch paralleling Petitioner's highway frontage. From there, the water ultimately flows into the wetlands on his property. The current Department of Transportation system affords no treatment to the storm water before it is released onto the Petitioner's property. This storm water can reasonably be expected to contain oils, greases and other contaminants. Petitioner has proposed to include in his project a system designed to treat this highway runoff and improve its quality before it is released into the waters of the state. This system will treat the water by percolate, removing approximately 80 percent of the pollutants. In addition to treating and improving storm water runoff, the system proposed by Mr. Dibbs should provide a higher degree of water storage than currently exists for a net improvement to the environment over existing conditions. Taken together, Petitioner contends the above matters indicate there will be no adverse cumulative impacts resulting from the granting of the permit. There is some indication that the higher mitigation ratio offered by Petitioner could become a precedent for other similar projects. If that were to be the case, the resulting cumulative impact would be a positive rather than negative factor. Nonetheless, it is clear that future applications must stand on their own merit and independently stand the scrutiny of the cumulative impact test, as must the instant application. Turning to the conservation easement suggested by the Department as a condition of approval, the agency contends such an easement would allow it to reduce its requirement for mitigation from a 1.5:1 ratio to a 1:1 ratio. The Department has held in the past, it is suggested, that an applicant's agreement to provide more than the minimum acceptable mitigation can justify the lack of an easement. Mr. Dibbs contends here, and it would so appear, that his agreement to provide more than the required amount of mitigation, when coupled with the fact that the mitigated area will be a part of the Department's wetlands permitting jurisdiction, obviates any need to provide a conservation easement either to offset any adverse impact or to protect against adverse cumulative impact of the project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Permit No. 292103383, to dredge and fill 2.014 acres of jurisdictional wetlands in Hillsborough County, Florida be issued to Petitioner herein, Stephen J. Dibbs, subject to mitigation herein at a rate of no less than 1.5:1 and under such lawful and pertinent conditions as may be specified by the Department. RECOMMENDED this 20th day of February, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 20th day of February, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. & 6. Accepted and incorporated herein. 7. - 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. 14. Accepted and incorporated herein. 15. Accepted and incorporated herein. 16. - 18. Accepted and incorporated herein. 19. Accepted and incorporated herein. 20. Accepted and incorporated herein. First two sentences accepted. Balance is restatement of testimony. & 23. Accepted. Not a Finding of Fact but more a comment on the evidence. 25. & 26. Accepted and incorporated herein. 27. Accepted. 28. & 29. Accepted and incorporated herein. 30. Not a Finding of Fact but a comment on the evidence. 31. & 32. Accepted. 33. Accepted and incorporated herein. 34. - 36. Accepted. 37. Accepted. 38. - 40. Accepted and incorporated herein. 41. More a Conclusion of Law than a Finding of Fact. 42. Accepted and incorporated herein. 43. - 45. Accepted. 46. Accepted and incorporated herein. 47. More a Conclusion of Law than a Finding of Fact. 48. & 49. Accepted and incorporated herein. 50. - 53. Accepted and incorporated herein. 54. More a Conclusion of Law than a Finding of Fact. 55. - 57. Accepted. 58. Accepted and incorporated herein. 59. More a Conclusion of Law than a Finding of Fact. 60. & 61. Accepted but redundant. 62. Not a Finding of fact but a Conclusion of Law. 63. - 65. Accepted but redundant. 66. Accepted and incorporated herein. 67. - 69. Accepted. 70. - 74. Accepted. 75. - 81. Accepted and incorporated herein in substance. 82. & 83. Accepted. 84. - 88. Accepted. FOR THE RESPONDENT: 1. - 9. Accepted and incorporated herein. 10. & 11. Accepted and incorporated herein. 12. - 15. Accepted. 16. - 18. Accepted and incorporated herein. 19. - 26. Accepted and incorporated herein. 27. - 30. Accepted and incorporated herein. 31. - 34. Accepted and incorporated herein. 35. - 39. Accepted. 40. - 48. Accepted and incorporated herein. 49. & 50. Accepted and incorporated herein. 51. & 52. Accepted. 53. - 60. Accepted. 61. - 64. Accepted and incorporated herein. 65. Rejected as contra to the better evidence. 66. - 69. Accepted and incorporated herein. 70. Rejected as contra to the better evidence. 71. & 72. Accepted. 73. - 75. Accepted. 76. - 81. Accepted. 82. - 87. Accepted 88. Accepted and incorporated herein. 89. & 90. Accepted and incorporated herein. 91. & 92. Rejected as contra to the better evidence. 93. Accepted and incorporated herein. 94. - 96. Accepted and incorporated herein. 97. & 98. Accepted. 99. Accepted and incorporated herein. 100. & 101. 102. Rejected. Accepted as Department's definition. 103. Not proven. 104. - 106. Not relevant to ultimate issue. 107. 120. - - 119. 124. Not a proper Finding of Fact but a restatement the testimony of a witness. Accepted as stipulated facts. of FOR THE INTERVENOR: Noted. Accepted. - 9. Accepted. - 14. Accepted. Not a proper Finding of Fact but a conclusion as to the legal sufficiency of the evidence. - 21. Accepted as statements of the Department's non-Rule policy. 22. - 24. Accepted and incorporated herein. 25. Accepted. 26. Accepted. 27. & 28. Accepted. 29. Rejected. 30. & 31. Accepted. 32. Accepted. 33. Rejected. 34. Accepted. 35. Not proven. Accepted. Accepted. & 39. Rejected. Accepted as the witness' opinion. Accepted. - 45. Accepted and incorporated herein. 46. Accepted. COPIES FURNISHED: E. Gary Early, Esquire Akerman, Senterfitt & Eidson, P.A. 216 South Monroe Street, Suite 200 P.O. Box 10555 Tallahassee, Florida 32302-2555 John W. Wilcox, Esquire Akerman, Senterfitt & Eidson, P.A. Post Office Box 3273 Tampa, Florida 33601-3273 W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712 Virigina B. Wetherell Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Charlotte Highlands is an approximately 97-acre mobile home subdivision in Charlotte County, Florida. The roads in the subdivision are unpaved. The stormwater sheet flow in the area is from west to east. To the east of Charlotte Highlands is a 21-acre hardwood swamp, the wetlands in question in this proceeding. Stormwater from the 97-acre subdivision west of the wetlands and from the 250 acres west of the subdivision flows to the east into the wetlands. Water flows out of the wetlands to the east, from the 21-acre wetlands through a stream into Myrtle Slough. Myrtle Slough is part of the waters of the State. The County wishes to create a stormwater drainage system for Charlotte Highlands. Under the County's plan, stormwater from the 97-acre subdivision would be discharged into the wetlands owned by Desrosiers Brothers. Although the County and the Department view this project as involving only the discharge of stormwater from the 97-acre subdivision into the wetlands, the stormwater discharged would include the stormwater flowing into the 97-acre subdivision from the 250 acres located directly west of the subdivision. The County met with individuals from the Southwest Florida Water Management District, and that agency questioned the method of calculations used by the County in determining the amount of runoff into the proposed drainage system. Although new calculations of stormwater runoff volume were performed by the County, those new calculations were not provided to the Department in the County's permit application. The wetlands in question contain cypress, maples, laurel oak, bay trees, percia, dahoon holly, buttonbush, ferns, palmetto, and wet pine. Some of these species, especially the maples, cannot withstand much flooding. The outflow from the wetland into Myrtle Slough is via a natural stream. Although there are some indications that some excavation may have taken place in the stream, such as the spoil located near the cattle watering pond near the mouth of the wetlands, water flows from the wetlands to Myrtle Slough through a natural watercourse with no man-made connections. The hydroperiod is the length of time water stays in a wetlands before it drains out of the wetlands. This determines the water level, the critical factor affecting a wetland's ability to perform its vital functions. If the rate or volume of either the inflow or outflow of a wetlands is altered enough, the water level changes, usually with adverse environmental consequences. Certain species of flora will die off if the water level rises too much. Others require high water levels for their survival. In order to assess the effects of a proposed alteration to such a system, one must determine the existing high pool and low pool. Donald H. Ross established the high and low pools for the County. He went to the wetlands and observed the stain, rack, and lichen lines on tree trunks. He also observed the cypress buttress. Ross also determined the invert of the stream, the elevation at which water first starts to run in it. Based solely on this site visit, the County determined the high pool in the wetlands to be at 14.8 NGVD and the low pool to be at 14.1 NGVD. No rainfall data was collected and analyzed; no hydrological studies were performed; no observations were made over a period of time. There are two aspects of this project which can alter the hydroperiod of the wetlands. The first involves the amount of water entering the wetlands, and the second involves the amount of water leaving the wetlands. Currently, runoff from the 97-acre subdivision as well as the 250-acre area west of the subdivision drains toward the wetlands. The County intends to pave the roads in the subdivision and construct a system of swales. Although the paving will increase the impervious surface by an insignificant amount, the runoff will be delivered to the wetlands faster. Accordingly, peaks in water level will occur more suddenly with increased water arriving more quickly. Stormwatr is discharged into wetlands to take advantage of the pollutant-filtering functions of wetlands vegetation. To realize this function, the water must be held in the wetlands for a certain amount of time. The County intends to accomplish this by the installation of a control structure, known as a weir, which will regulate the amount of water leaving the wetlands. The County proposes to construct a weir on the stream between the wetlands and Myrtle Slough approximately 100 feet from the mouth of the wetlands. The top of the weir for this system will be set at 14.8 NGVD, the high pool established by Ross for the County. The weir will also have an orifice set at 14.1 NGVD, the low pool established by Ross and the County, which will allow a constant flow of water out of the wetlands at that elevation. The control structure will cause water to remain in the wetlands for a longer period of time, which will raise the water level in the wetlands by some amount. In order to accurately predict this amount, it is necessary to determine the storage capacity of the wetlands. The County calculated that a storage capacity of 177,761 cubic feet would be required for the wetlands to contain the first one-half inch of rainfall from the 97-acre subdivision. No calculations have been made as to the storage capacity required for the wetlands to contain the first one inch of rainfall from the 97-acre subdivision as well as the 250-acre area that drains into the subdivision which then drains toward the wetlands. The County has failed to establish the hydroperiod of the wetlands. Having failed to establish the hydroperiod of the wetlands, the impact of its project on the wetlands cannot be determined. As an alternative to this project the County considered rerouting the stormwater away from the wetlands. Diverting necessary water from the wetlands would result in the desiccation of the wetlands. However, an increased water flow if not properly discharged would likely result in an over impoundment of the wetlands. Either approach would have an adverse impact on a productive wetland system, such as the wetlands involved here, and a change in the vegetation would adversely impact the wetland's ability to treat the discharge. The treatment of stormwater in wetlands is a relatively new technique. Although some projects have been approved in other parts of the State, projects such as that proposed by the County have not been used yet in southwest Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Charlotte County's application for a wetlands stormwater discharge facility permit. DONE and RECOMMENDED this 8th day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0243 Although Charlotte County filed a document called Proposed Findings of Fact and Conclusions on the Evidence, rather than setting forth any findings of fact the County simply makes what it calls a Comparison of Evidence on Issue 1 and a Comparison of Evidence on Issue 2, listing under each heading excerpts from the testimony of each of the witnesses in this proceeding. Accordingly, no rulings are made herein on Charlotte County's proposed findings of fact since it is determined that there are none. Desrosiers Brothers' proposed findings of fact numbered 1-9, 15, 17, 24, 26, 27, and 38 have been adopted either verbatim or in substance in this Recommended Order. Desrosiers Brothers' proposed findings of fact numbered 10-12, 19-21, 23, 25, 29-37, 40, and 41 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or recitations of the testimony. Desrosiers Brothers' proposed findings of fact numbered 13, 14, 16, 18, 22, 28, and 39 have been rejected as being unnecessary or subordinate to the issues under consideration herein. The Department's proposed findings of fact numbered 1, 2, 14 in part, 15, 16 in part, 17 in part, 18-22, 27, and 28 in part have been adopted either verbatim or in substance in this Recommended Order. The Department's proposed findings of fact numbered 5 and 6 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or recitations of the testimony. The Department's proposed findings of fact numbered 16 in part, and 17 in part have been rejected as being unnecessary or subordinate to the issues under consideration herein. The Department's proposed findings of fact numbered 3, 4, and 7-13 have been rejected as being contrary to the weight of the evidence in this cause. The Department's proposed findings of fact numbered 14 in part, 23-26, and 28 in part have been rejected as not being supported by the evidence in this cause. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Philip J. Jones, Esquire 201 West Marion Avenue Suite 301 Punta Gorda, Florida 33950 Matthew G. Minter, Esquire 18500 Murdock Circle Port Charlotte, Florida 33948-1094 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 =================================================================
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 Department of Environmental Protection properly determined that Respondent City of Gulf Breeze was entitled to construct a concrete jetty at the mouth of Gilmore Bayou, to widen the mouth of the bayou an additional 35 feet, and to dredge sections of the bayou to a depth of minus eight feet.
Findings Of Fact On March 22, 1996, Gulf Breeze applied for a wetlands resource permit from DEP to allow the following: (a) dredging of the entrance channel to Gilmore Bayou in order to return the channel to its original width and depth; (b) construction of bulkheads on either side of the channel; and (c) construction of two jetties on the east side of the channel to slow the accretion of sediments in the channel. The proposed project is located in the waters of the state at the southwestern end of Gilmore Bayou where it opens into Pensacola Bay. The project is adjacent to and north of 406 Navy Cove Road, in the City of Gulf Breeze, Florida, Section 6, Township 35N, Range 29W. The Petitioner's home is located at 86 Highpoint Drive, Gulf Breeze, Florida. Her residence is downstream from the project at the northeastern end of Gilmore Bayou. The channel at the southwestern end of Gilmore Bayou was originally dredged in the mid-1950s. Since that time, the channel has provided a navigable outlet to Pensacola Bay for use by property and boat owners along Gilmore Bayou. The channel has also provided for water circulation and tidal flushing within the Bayou. Maintenance dredging has been performed almost annually to keep the Gilmore Bayou channel open. The purpose of the proposed project is to reduce the need for the frequent maintenance dredging and to provide for better water circulation in the bayou. A wetlands resource permit to perform maintenance dredging has not been required in the past because that activity was exempt from the permitting process. On July 28, 1997, the Department issued Gulf Breeze a Notice of Intent to Issue Draft Permit Number 572874961 to construct one seventy (70) foot long concrete jetty at the mouth of Gilmore Bayou, widen the mouth of Gilmore Bayou an additional thirty-five feet and dredge sections of the Bayou to a depth of minus eight feet. In issuing the Notice of Intent to Issue, the Department also considered Gulf Breeze's application for a five- year sovereign, submerged land easement for the location of the jetty. Gulf Breeze published the Notice of Intent to Issue in a newspaper of general circulation in accordance with DEP requirements and Section 373.413(4), Florida Statutes, and Rule 62-343.090(2)(k), Florida Administrative Code. Thereafter, Petitioner filed a petition requesting that the permit be denied. Petitioner has a substantial interest in the permitted activity, as she owns property and resides on Gilmore Bayou. Petitioner's request that the permit be denied is primarily based on her opinion that water quality in Gilmore Bayou has deteriorated as a result of the original and continuous dredging of the channel at the southwestern end of Gilmore Bayou. She is concerned that the permitted activity will result in further water quality degradation and result in a further movement of the spit of land which extends in front of her home out to Deadman's Island on the northern side of the Bayou. The ecosystem in Gilmore Bayou today is a healthy system which supports various marshes and fish. The ecosystem thrives despite water quality degradation resulting from development and urbanization along its shores. More specifically, septic tanks, fertilizer runoff, and stormwater discharge have caused water quality to degrade in the Bayou. The most persuasive evidence indicates that the dredging of the channel over time has not caused the water quality to degrade. The permitted activity will have a positive effect on water quality in Gilmore Bayou, as it will enhance tidal flushing through the channel. The jetty, which is a part of the permitted activity, will slow the transport of sand into the channel, allowing for better flushing and reducing the need for maintenance dredging in the channel. Construction of the jetty is recommended and supported by the hyrdographic study of Kenneth L. Echternacht, Ph.D., P.E. Gulf Breeze obtained and submitted this study to DEP to assist in evaluating the project. The permitted activity will have no significant impact on the location of the spit of land extending from Petitioner's property to Deadman's Island. The shifting of the spit of land over the years has been caused by numerous factors which are identified in a 1993 study by Dr. James P. Morgan, Ph.D. These factors include development of the area, erosion of the surrounding bluffs, the location of the Pensacola Bay bridge, and storms and sand drift into channels to the east of the spit. Without this project or frequent maintenance dredging, the channel at the southwestern end of Gilmore Bayou would fill with silt. Eventually, the silt would inhibit water circulation and result in further water quality degradation in the bayou. The permitted activity is not contrary to the public interest. Instead, it will benefit the public interest. The project will make it possible to maintain the Gilmore Bayou channel more efficiently. The project will allow for increased flushing of the bayou. The increased flushing will improve water quality in the bayou. The permitted activity will not have any adverse effect on the conservation of fish or wildlife, or any endangered species or their habitats. The permitted activity will not adversely affect navigation or flow of water or cause any harmful erosion or shoaling. It will have a positive effect on navigation and water flow and act to prevent harmful erosion or shoaling. The permitted activity will have no adverse effect on fishing or recreational values or marine productivity in the vicinity of the project. The permitted activity will provide for permanent jetties and bulkheads at the entrance to Gilmore Bayou. The permitted activity will have no adverse effect on historical or archeological resources on Deadman's Island or in the vicinity of the project. The permitted activity will have a positive impact on the recreational functions and use of the channel and Deadman's Island.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Department of Environmental Protection issue a Final Order determining that its Notice of Intent to Issue Permit, together with Permit No. 572874961, is final agency action. DONE AND ENTERED this 6th day of February, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1998. COPIES FURNISHED: Mary Jane Thies, Esquire Beggs and Lane Post Office Box 12950 Pensacola, Florida 32576-2950 Ricardo Muratti, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Patricia J. Moreland 86 Highpoint Drive Gulf Breeze, Florida 32561 Matt E. Dannheisser, Esquire 504 North Baylen Street Pensacola, Florida 32501 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issues to be decided in this case are whether Respondents are liable for the violations charged in the NOV, whether Respondents should pay the penalties assessed in the NOV, and whether Respondents should be required to take the corrective actions demanded in the NOV.
Findings Of Fact The Department is the state agency with powers and duties related to the regulation of construction activities in wetlands and surface waters, including filling in wetlands. Respondents are individuals who own real property on Bayshore Road in North Fort Myers, Florida. Some confusion exists in the record about the street number for the property. It is alternately described as 11590, 11620, 11650, and 11850. This is partly due to the fact that the property consists of at least two recorded parcels. The actual location of the filled area is not disputed, nor is it disputed that Respondents own the property where the fill was placed. The property is adjacent to the Caloosahatchee River. It contains freshwater marsh wetlands dominated by Leather Fern. The Department conducted a site inspection of Respondents’ property and determined that Respondents had filled 0.96 acres of wetlands. The Department produced evidence that it incurred costs of $1,824.50 in this case. The corrective actions ordered in the NOV, which are designed to restore the wetlands that were filled, are reasonable.
The Issue Whether Respondent Richardson’s application for a wetlands resource permit to construct a private road and bridge through wetlands should be denied for failing to provide mitigation to offset the impacts to existing wetlands. Whether Respondent Richardson had provided the Department with reasonable assurance that he or she owns or has sufficient authorization to use certain land in mitigation to offset the wetland impacts.
Findings Of Fact In January of 1990, John Richardson applied to the Department for a wetland resource (dredge and fill) permit under Section 403.918, Florida Statutes to construct a private road and bridge through wetlands. The proposed project would impact 0.032 acres of wetland. The proposed project is not located in an Outstanding Florida Water (OFW). The proposed project would adversely affect the following: the conservation of fish and wildlife; the fishing, recreational values, and marine productivity in the vicinity of the proposed project; and the current condition and relative value of functions being performed by the wetlands impacted by the project. The proposed project would be permanent in nature. The proposed project would not meet the criteria of Section 403.918(2)(a) Florida Statutes, without mitigation adequate to offset the impacts to wetlands. To provide adequate mitigation for the proposed project, Respondent John Richardson proposed to create and preserve 0.029 acres of new wetlands and preserve 4.35 acres of existing wetlands. The preservation would consist of granting to the Department a perpetual conservation easement over the mitigation wetlands. Respondent John Richardson represented to the Department that he was the record owner or had permission to use the land that he offered for mitigation. The Department reasonably relied on that representation. The mitigation proposed by Respondent John Richardson would be adequate to offset the impacts to wetlands resulting from the proposed project. On March 4, 1992, the Department issued to John Richardson a wetlands resource permit for the proposed project. The Department was not aware, before it issued this permit, that John Richardson might not own or have permission to use the mitigation land. The Department was substantially justified in issuing the permit to John Richardson on March 4, 1992. Specific conditions 28-31 of that permit required Respondent John Richardson to grant the Department a conservation easement over the mitigation land within thirty days after issuance of the permit. Respondent John Richardson failed to grant the Department the required conservation easement, and failed to publish notice of the Department’s action. On July 22, 1996, Petitioners filed a timely petition with the Department challenging the Department’s issuance of the March 4, 1992, permit to Respondent John Richardson. On September 11, 1996, Janet Richardson filed an application with the Department for transfer of the March 4, 1992, permit to her following the dissolution of marriage with John Richardson. By letter dated October 11, 1996, the Department requested Janet Richardson to provide additional documentation to show that she either owns the mitigation land or has permission to use that land. Janet Richardson was required to provide a legal survey drawing depicting the mitigation land, property records showing ownership of that land, and a notarized statement from the land owner authorizing her to use that land. The Department specifically advised Janet Richardson that it could not approve the proposed project if she failed to submit this requested documentation to the Department prior to the final hearing. Janet Richardson failed to provide the requested documentation by the date of the final hearing in this matter, or subsequently. As of November 6, 1996, no work had begun on the proposed project. At the hearing, the Department adequately explained its change in position from deciding to issue the permit (on March 4, 1992) and proposing denial of the permit (on November 6, 1996). The Department relies on an applicant’s representations regarding ownership of or right to use land unless a problem is brought to the Department’s attention. In this case, the Department was not aware that there was a problem with the applicant’s right to use the mitigation land until the petition was filed with the Department on July 22, 1996. Janet Richardson failed to provide proof that she either owns or is authorized to use the land to mitigate the impacts to wetlands from the proposed project. Without such proof, Janet Richardson failed to prove that she could mitigate those same impacts from the proposed project.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Respondent Richardson’s request for a wetlands resource permit for the proposed project.ONE AND ORDERED this 17th day of December, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996. COPIES FURNISHED: Richard Stauffer Post Office Box 97 Aripeka, Florida 34679-097 Cy Plata Post Office Box 64 Aripeka, Florida 34679 Steven McCallum Post Office Box 484 Aripeka, Florida 34679 Leslie Neumann Post Office Box 738 Aripeka, Florida 34679 John Richardson 700 West Broad Street Brooksville, Florida 34607 Janet Richardson 1603 Osowaw Boulevard Springhill, Florida 34607 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virgina B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether Respondent, John Jozsa, should have a $6,000.00 administrative penalty imposed, take corrective action, and pay investigative costs for allegedly dredging 0.91 acres of wetlands and filling 0.52 acres of wetlands without a permit on his property located in unincorporated Sumter County, Florida, as alleged in a Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice) issued by Petitioner, Department of Environmental Protection (Department), on March 13, 2008.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The charges Respondent owns an approximate 4.5-acre parcel of land located at 1978 County Road 652A in unincorporated Sumter County, Florida. The parcel identification number is N29A003. The property is generally located east of Interstate 75, west of U.S. Highway 301, and just south of the City of Bushnell. According to aerial photographs, County Road 652A appears to begin at U.S Highway 301 and runs in a westerly direction where it forms the southern boundary of Respondent's parcel and terminates a short distance later. Southwest 80th Street also runs west from U.S. Highway 301 and forms the northern boundary of the property, while Southwest 20th Terrace runs in a north- south direction adjacent to its western boundary. Respondent purchased the parcel on September 27, 1993, and constructed a home on the site several years later. The property is contiguous to Mud Lake, a Class III waterbody lying to the southeast of Respondent's property. According to Respondent's Exhibit 2.b., at least a portion of the property is in the Federal Emergency Management Agency's (FEMA's) 100-year flood zone. While conducting a site inspection near Respondent's property on September 27, 2006, Brian Brown, an Environmental Specialist III in the Department's Tampa District Office, heard "heavy equipment" operating nearby and drove to Respondent's home. There he observed a "tracked vehicle" resembling a bulldozer "knocking down trees" and grading an area that appeared to be wetlands. Mr. Brown took photographs of the cleared land and the tracked vehicle to confirm his observations. See Department's Exhibits 2a. through d. At hearing, Respondent acknowledged that he had borrowed the equipment from a friend, Leo, to "level and smooth" the "uplands" and "other areas." After returning to his office, Mr. Brown first confirmed through information from the Sumter County Appraiser's Office that Respondent owned the property in question. He then reviewed aerial photographs of Respondent's property taken in 1993, 1997, 2002, and 2006 to determine the condition of the property in earlier years. These photographs reflected that before 2006, the parcel had no large cleared area like the one that he had observed on the northern half of the property. Mr. Brown also studied a soil survey of the area to determine the type of soils on Respondent's property, and he reviewed the Florida Wetlands Delineation Manual which is used to determine if property is wetlands or uplands. Finally, information in the Department's database revealed that Respondent had not applied for a permit to conduct the observed activities. Based on this preliminary information, Mr. Brown generated a request for a formal inspection of Respondent's property by filling out a complaint form. (Respondent continues to believe that Mr. Brown was not conducting a "routine" inspection in the area but rather was in the area because a neighbor had filed a complaint; however, the complaint was triggered by Mr. Brown, who filed a complaint form himself based on the observations he made on September 27, 2006.) Mr. Brown then contacted Respondent by letter to set up a date on which the property could be formally inspected to verify "that Wetlands and or Surface Waters of the State are not being impacted." In response to Mr. Brown's letter, Respondent advised the Department that it could inspect his property. Around 1:30 p.m. on November 14, 2006, Mr. Brown and Lee W. Hughes, another Department employee, inspected Respondent's property to determine whether Respondent's activities were conducted within wetlands and to what extent wetlands were impacted. Respondent was present during the inspection. The employees' observations are memorialized in photographs received in evidence as Department's Exhibits 11A through 11N. The two observed a "large" area north of Respondent's home that had been totally cleared and deforested. The center of the cleared property had been dredged or scraped to create a pond-like area several feet lower than the adjoining land, while the soils removed from the pond-like area had been used to create sculptured white side-casting perhaps ten inches high on the edges of the pond, filling additional wetlands. However, the pond was empty because of drought conditions. The Department's inspection revealed that the cleared area was wetlands because of the presence of various plant species which are indicative of wetlands, including Swamp Tupelo, Red Maple, American Elm, Swamp Dogwood, Dahoon Holly, Buttonbush, Swamp Laurel Oak, Carolina Willow, Elderberry, Soft Rush, Smartweed, and Dayflower. Also, there were hydrologic indicators such as water stain lines, elevated lichen lines, and hypertrophied lenticels. Finally, there were hydric soils found on the property. This was confirmed by ground-truthing (an on- site evaluation of the wetlands and their parameters to verify the on-site conditions), which revealed dark top soil at least four inches thick and the presence of muck. Collectively, these indicators are sufficient to make a finding that the impacted area was wetlands. See Fla. Admin. Code R. 62-340.200 and Department's Exhibit 9. The fact that the "home-site ha[d] [not] been delineated [as wetlands] by any other governmental agency," as asserted by Respondent in his Proposed Recommended Order, is not dispositive of the issue. Respondent's assertion that no dredged materials were taken off-site, and no fill was brought onto the property, was not challenged. A second inspection was conducted by Mr. Brown and Lindsay L. Brock, then a Department employee, on December 19, 2006, for the purpose of mapping the actual size of the impacted area with Global Positioning Satellite (GPS) equipment.6 The second inspection was necessary since the Department's GPS equipment was inoperative during the first inspection. Based on Ms. Brock's GPS calculations, which have been received in evidence as Department's Exhibit 19, the Department determined that the total area dredged was 0.91 acres, while the filled area was 0.52 acres. The total impacted area was 1.4 acres of wetlands. This amount was calculated by measuring the size of the pond, 0.91 acres, with the side-casting accounting for the remaining 0.52 acres. During the inspection, the area was also photographed a second time, and these photographs have been received in evidence as Department's Exhibits 12A through 12K. An Enforcement Inspection Report (Report) was later prepared by Mr. Brown summarizing the findings of the two inspections. That Report has been received in evidence as Department's Exhibit 10 and Respondent's Exhibit 1.e. At hearing, Mr. Brown reaffirmed that the findings in the Report were correct. Specifically, the wetlands in the disturbed area were characterized as having a dominance of Obligate and Facultative Wet species and numerous hydrologic indicators, as well as soils typically found in wetlands. A jurisdictional determination established that the impacted property was wetlands; that there were adverse impacts caused by the violations, i.e., impacts described in Sections 3.2.3.2, 3.2.3.3, 3.2.3.4(a), and 3.2.3.7 of the Basis of Review of the Southwest Florida Water Management District; and that there were cumulative and secondary impacts associated with the violations, i.e., the actual loss of 1.4 acres of forested hardwood wetlands (Gum Swamp-613), habitat loss, the alteration in the normal flow of detrital material to Mud Lake, and the reduction in the system's ability to cycle and control nutrient and pollutant levels. Because the impacted lands were wetlands, a permit is required in order to perform any dredging and filling. See Fla. Admin. Code 62-343.050. The Report recommended that a Notice be issued. On February 13, 2007, the Department's Tampa District Office sent Respondent a Warning Letter advising him "of possible violations of law for which [he] may be responsible, and to seek [his] cooperation in resolving the matter." Department's Exhibit 22 and Respondent's Exhibit 1.h. The letter also requested that Respondent meet with Mr. Brown to discuss the alleged violations. A meeting was held at the District Office on March 12, 2007, but efforts to resolve the matter were unsuccessful. During the informal discussions between the parties, and prior to the issuance of a Notice, Respondent requested an exemption under Section 373.406(1) and (6), Florida Statutes.7 The first subsection provides that no Department rule, regulation, or order affects the right of any person to capture, discharge, and use water "for purposes permitted by law." The second subsection provides that the Department may exempt "those activities that the . . . department determines will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the district." At hearing, Mr. Brown indicated that he did not respond to the exemption request because Respondent did not qualify. This is because dredging and filling of wetlands is not "permitted by law" without first obtaining a permit, and because, for the reasons cited in its Report, the Department construed the activities as having more than "minimal or insignificant" impacts. Given these circumstances, the statutory exemptions do not apply. The Notice was not issued until a year later on March 13, 2008. The reason for the delay is not of record. Besides contending that Mr. Brown's testimony was not credible, through examination of witnesses and the submission of various exhibits, Respondent raised numerous points to support his contentions that (a) the property is not wetlands, (b) no dredging or filling occurred, and (c) the activities are exempt from Department permitting requirements under several statutes.8 He also argued that the Department's decision to initiate an enforcement action against him was flawed or biased. The latter argument has been considered and rejected. Respondent first asserts that the wetlands on his property were already stressed and in bad condition, and that clearing the area and replanting vegetation in and around the pond area created a healthier environment for the vegetation and plants. While Mr. Brown conceded that the wetlands may have been stressed, that in itself does not cause the impacted property to lose its wetlands character, and a permit to dredge and fill the site is still required. Respondent also pointed out that the impacted area was dry before and after the activities occurred, and therefore the wetlands determination was incorrect. He further points out that the Department's representatives agreed that no water or moisture on the ground surface were observed during their two inspections. Given the number of wetland indicators found on the site even during drought conditions, the argument that the property is not wetlands has been rejected. See Finding of Fact 6, supra. Respondent also argued that an authoritative source (Hydric Soils of Florida Handbook) indicates that the soils in that area of the County are not the type typically found on wetlands. Specifically, the predominant soil on his property is identified as "Kanapaha sand, bouldery subsurface (25)," which is not considered a hydric soil. Mr. Brown explained, however, that notwithstanding what another source may state, it is necessary to verify the type of soil by performing field tests at the site. Ground-truthing performed during the first inspection confirmed the presence of soils typically found in wetlands. See Finding of Fact 7, supra. Respondent also questioned the accuracy of the Department's Exhibit 18, which is an aerial of Respondent's property created by Mr. Brown in February 2008 depicting a pond filled with water in the middle of the cleared area. Respondent contended that the map could not be accurate since the pond area was dry in February 2008 due to drought conditions. In response to this criticism, Mr. Brown noted that the map was not supposed to represent an actual aerial photograph taken in 2008. Rather, it was created for the purpose of superimposing on the property the pond-like area (with water added) observed during the 2006 inspections and was intended only to demonstrate the pond's size in relation to the size of the entire parcel. The exhibit was not tendered for the purpose of proving that the dredging and filling had occurred. Through examination of Mr. Brown, Respondent attempted to show that he qualified for a stormwater exemption under Section 403.813(2)(q), Florida Statutes, on the theory that his activities fell within the purview of that law. The statute exempts from permitting requirements the construction, operation, and maintenance of a stormwater management facility which is designed to "serve single-family residential projects, including duplexes, triplexes, and quadruplexes, if they are less than 10 acres total land and have less than 2 acres of impervious surface and if the facilities" satisfy three conditions. One condition is that the facility must "discharge into a stormwater discharge facility exempted or permitted by the department under this chapter which has sufficient capacity and treatment capability as specified in this chapter and is owned, maintained, or operated by a city, county, special district with drainage responsibility, or water management district . . . ." Id. Therefore, even if the pond-like area could be characterized as a stormwater facility, Respondent still does not meet the requirements of the statute since his "facility" does not discharge into another exempt or permitted facility as defined in the statute. In this case, the waters eventually discharge into Mud Lake, which was not shown to be an exempt or permitted stormwater facility. Respondent also questioned the manner in which the Department calculated the size of the impacted area for purposes of assessing an administrative penalty. See Department's Exhibit 21 and Respondent's Exhibit 1.j., in which penalties are assessed based on the dredged and filled areas each being "greater than one-half acre but less than or equal to one acre." Specifically, he argues that the combined dredged and filled areas exceed one acre in size, and under the terms of Section 403.121(3)(c), Florida Statutes, the administrative penalty schedule in the cited statute does not apply. To support this contention, Respondent noted that in responding to discovery, the Department acknowledged that the total impacted area was 1.4 acres. Section 403.121(3)(c), Florida Statutes, provides in relevant part that "the administrative penalty schedule shall not apply to a dredge and fill violation if the area dredged or filled exceeds one acre." In assessing penalties under the statute, the Department considers the dredging and filling as two separate violations. See Counts I and II, Notice. Therefore, it did not combine the two impacted areas for purposes of calculating a penalty under the administrative penalty schedule. While the statute is inartfully drawn and is arguably susceptible to more than one interpretation, the Department's interpretation is a reasonable and permissible one, and its computation is hereby accepted. (If Respondent's construction of the statute was approved, and the two impacted areas were combined, this would not mean that the Department could not assess a penalty. Rather, it appears the Department would then have the choice of (a) filing an action in circuit court seeking the imposition of civil (rather than administrative) penalties, or (b) assessing an administrative penalty under Section 403.121(9), Florida Statutes, which did not exceed $5,000.00 per violation or $10,000.00 for all violations.) Respondent also contended that he was simply performing landscaping and gardening activities with a tracked vehicle, and that no "excavation" within the meaning of Section 373.403(13), Florida Statutes, occurred. That statute defines dredging as "excavation, by any means, in surface waters or wetlands."9 On the other hand, "filling" is defined in Section 373.403(14), Florida Statutes, as "the deposition, by any means, of materials in surface waters or wetlands." On this issue, the evidence shows that Respondent used a tracked vehicle to remove, scrape, and/or push soils from the wetlands to create the pond-like area and then deposited those materials in other wetlands around the sides of the pond to create the side casting. This activity constituted dredging and filling, as defined above. The remaining arguments of Respondent have been carefully considered and rejected. The preponderance of the evidence supports a finding that Respondent engaged in dredging and filling in wetlands without a permit, as alleged in the Notice, and that the charges have been sustained. Mitigation In its Proposed Final Order, the Department contends that Respondent presented no mitigation and therefore the administrative penalties should not be reduced. Mitigating circumstances include, among other things, "good faith efforts [by the violator] to comply prior to or after discovery of the violations by the department." § 403.121(10), Fla. Stat. After the area was dredged and filled, Respondent replanted some trees and plants while landscaping his back yard. Also, prior to hearing, he engaged the services of two experts to prepare an evaluation of the charges in the Notice, inspect the property, and submit suggested corrective actions for restoring the impacted area to its original condition. Although the two experts did not appear at hearing, they did render reports which contained proposed corrective actions, and their work should arguably be construed as a good faith effort by Respondent to comply with the Department's requirement that the property be restored to its original condition. Corrective Actions The Department has proposed extremely lengthy and detailed corrective actions which are contained in paragraphs 17 through 31 of the Notice and are designed to restore the property to its original condition. (Presumably, these are standard corrective actions imposed in cases such as this for restoring dredged and filled wetlands.) At hearing, Mr. Brown described the nature and purpose of these conditions, which can generally be summarized as (a) requiring that the entire 1.43-acre area be filled and/or regraded to its original contour elevation so that the replanting efforts will be successful, and (b) requiring a rigorous replanting and five-year monitoring schedule. Paragraphs 17 through 31 are set forth below: Respondents [sic] shall forthwith comply with all Department rules regarding dredging and filling within a surface water or wetland. Respondent shall correct and redress all violations in the time periods required below and shall comply with all applicable rules in Fla. Admin. Code Chapter 62-343 and 62-340. Within 30 days of the effective date of this Notice of Violation, the Respondent shall attend a pre-construction conference with a representative of the Department's Environmental Resources staff to review the work authorized by this Notice of Violation. Prior to the commencement of any earthmoving authorized in this Notice of Violation, the Respondent shall properly install and maintain Erosion and Sedimentation Control devices around the impacted area to prevent siltation and turbid discharge in to adjacent wetlands and surface waters (See Figure 2 attached hereto and incorporated herein). The Erosion and Sedimentation Control devices (i.e. staked silt screen) shall be installed no further than one-foot from the toe of the impacted area and shall remain in place until the restoration actions are completed to the Department's satisfaction. The Respondent shall re-grade the approximate 1.43 acres of impacted wetland to a grade consistent with the adjacent, unaltered wetlands, as illustrated in Figures 1 and 2 attached hereto and incorporated herein. (a) Only fill material excavated from the impacted area shall be used in the restoration of the site. If it is determined that there is an insufficient amount of the fill to obtain the required grade, the Respondent shall cease all work and notify the Department so an alternative restoration plan can be developed, if necessary. During and after re-grading, Respondent shall stabilize all side slopes as soon as possible to prevent erosion, siltation, or turbid run-off into waters of the State, but, in any event, no later than 72 hours after attaining final grade. Any re-grading or filling of the restoration areas shall be conducted so as not to affect wetlands and surface waters outside the restoration area. Within 30 days of completing the requirements outlined in paragraph 20 above and prior to planting, the Respondent shall submit a certified topographic survey of the 1.43 acres of restored wetlands to the Department for review and approval. The Department shall notify the Respondent if the re-grading is acceptable and whether the re- grading is at the correct elevation to ensure that the restoration area will function as a wetland as defined in Chapter 62-340, Florida Administrative Codes (sic). If the re- grading is unacceptable to the Department, Respondent shall have 21 days in which to correct the problems identified by the Department and shall submit a new survey upon completion of the required work. The survey shall include the following information for the restoration area: The boundary lines of the Respondent's property. Restoration area on the Respondent's Property (in total square footage or acres of restored wetlands)[.] Topographic survey of the restoration area completed by a certified land surveyor. The survey shall illustrate one-foot interval on 25 foot transects throughout the restoration area. The transects shall commence and terminate 30 feet beyond the limits of the restoration area. Once grading has been approved by the Department, the Respondent shall plant 270 of the following species in any combination throughout the 1.43-acres of restored wetlands: Swamp Tupelo (Nyssa syvatica), Red Maples (Acer rubrum), American Elm (Ulmus Americana L.), Swamp Dogwood (Cornus amomum Mill.), [and] Dahoon Holly (Ilex cassine L.). The tree species shall be planted on 15 foot- centers throughout the restoration area and shall be 3-gallon, well-rooted, nursery grown stock. Within 30 days of completion of the planting outlined in paragraph 24 above, the Respondent shall submit a "Time Zero" Monitoring Report, which includes the following information: Respondent's name, address, and OGC Case number; Date the Corrective Actions were completed; Enough color photographs to accurately depict the completion of the wetland restoration actions outlined in paragraphs 20 through 24 above. The photographs shall be taken from fixed reference points shown on a plan-view drawing; Nursery receipts for all plants used in the Restoration Action; Number, size and spacing of each species planted; and Description of any exotic vegetation removal or control conducted to date including the acreage of exotic vegetation removal and how vegetation removal or control was conducted. Subsequent monitoring reports shall be submitted for a period of 5 years following completion of the Corrective Actions: semi- annually for the first year and annually for year two through five. The purpose of the monitoring shall be to determine the "success of the restoration." The monitoring reports shall include the following information: Respondent's name, address, and OGC Case number; Date the inspection was completed; Color photographs taken from the same fixed reference points previously established during the Time-Zero monitoring report so Department personnel can observe the current site conditions and evaluate the success of the restoration plan; The percentage of each planted tree species within the restoration area that has survived; The average height of the planted tree species; The percent canopy cover by planted tree species within the restoration area; a tree shall be defined as a woody species that has a diameter at breast height (DBH) of at least 1.5 inches and a vertical height of 10 feet as measured from the substrate; The percent cover within the restoration area by planted and naturally recruiting native, "non-nuisance," wetland species, as defined in Chapter 62-340, Florida Administrative Code; The percent cover of Brazilian Pepper (Schinus terebinthifolius), Water Primrose (Ludwigia peruviana) and other nuisance species including those species listed or not listed in Chapter 62-340, Florida Administrative Code; and A written summary describing the success of the restoration area including steps needed and/or taken to promote future success such as replanting and/or nuisance or exotic species removal. Description should also include water levels observed within the restoration area. "Success of the Restoration" means at the end of the monitoring schedule the following success criteria are met in the restoration area: The total percent cover within the restoration area by native wetland vegetation exceeds 85 percent; Average height of the planted tree species exceeds 10-feet; The total percent canopy cover by planted and naturally recruited native wetland trees exceeds 30 percent; The total contribution to percent cover by nuisance, non-wetland or species not listed in Rule 62-340, Florida Administrative Code is less than 10 percent; and The Department has inspected the restoration area and the Department has informed the Respondent in writing that the restoration area meets the definition of a wetland as defined in Rule 62-340.200, Florida Administrative Code. If it is determined by the Department, based on visual inspection and/or review of the monitoring reports, that the restoration area is not meeting the above specified success criteria, an alternative Restoration Plan shall be submitted to the Southwest District Office and shall meet the following requirements: Shall submit the plan within 30 days of notification by the Department of failure to meet the success criteria. Shall implement the alternative plan no later than 90 days after receiving Department approval. Shall restart monitoring and maintenance program. Should the property be sold during the monitoring period, the Respondent shall remain responsible for the monitoring and notify the new owners of the Respondent's obligation to continue the monitoring and maintenance until the Department has determined that the success criteria has been met. The Respondent shall notify the new owner(s) of this in writing and shall provide the Department with a copy of the notification document within 15 days of the sale of the property. Prior to the submittal of each required monitoring report, the Respondent shall remove all exotic and nuisance vegetation from the restored wetland area. Nuisance and exotic vegetation removal shall include but not be limited to Brazilian Pepper (Schinus terebinthifolius) and Water Primrose (Ludwigia peruviana). All exotic vegetation shall be removed from the restoration area using hand-held equipment in a manner that will minimize impacts to the existing wetland plants and will not cause ruts in the wetland soils, which will impede or divert the flow of surface waters. More than any other aspect of this case, Respondent questions the nature and extent of the corrective actions being proposed by the Department on the ground they are too extensive, complex, and unnecessary and will cost tens of thousands of dollars. When asked to quantify or estimate the cost of the corrective actions, Mr. Brown could not. It is fair to infer, however, that the cost of the restoration work will be expensive and probably far exceed the amount of the proposed penalties. The two experts' reports, which are hearsay and cannot be used as a basis for a finding of fact, essentially corroborate Respondent's argument that the corrective actions may be onerous and too far-reaching. The difficulty, however, in evaluating Respondent's claim is that the record is limited to Mr. Brown's testimony justifying the conditions, the hearsay reports of the two experts, and a few exhibits tendered by Respondent. A precise description of the impacted area before the work was undertaken is not a part of the record at hearing. Therefore, the original condition is not known. Through the submission of exhibits and the questioning of Mr. Brown, Respondent contended that a natural depression existed in the area where the pond now sits, that he was merely leveling off the depression while removing dead trees and plants, and that very little soil was actually removed from the pond area. Given these circumstances, he contends that there are insufficient fill materials on site to bring the pond to grade. In his Exhibit 3, Respondent estimates that just to fill the pond area and bring it to the grade of the surrounding land, he would be required to haul in approximately 4,200 cubic yards of sand or fill material. Also, Respondent's Exhibit 2.c. purports to be a copy of an elevation survey of the property containing elevations at different points on the property. The handwritten numbers on the exhibit, which Respondent represents were taken from a certified survey (which is not otherwise identified), reflect the property (presumably before the work was undertaken) gradually sloping from a higher elevation on the southern boundary (around 67 feet) to the road on the northern boundary (around 66 feet), with a lower elevation of around 64 feet in the middle of the parcel, indicating a slightly lower elevation in the middle of the property. Also, a part of the property lies within the FEMA 100- year flood zone. Thus, it is fair to infer that the pond area replaced an area with a slight depression and on which water would accumulate during heavy storm events. This circumstance would logically reduce the amount of fill necessary to restore the pond area to its original contour elevation. Therefore, in implementing the corrective actions, the Department should give consideration, in the manner it deems appropriate, to the fact that the area contained a natural depression before the illicit activities occurred. The evidence supports a finding that the proposed corrective actions, although extensive and costly, should be approved. To the extent Respondent has replanted the impacted area with trees and plants that fit within the Department's restoration scheme, he should also be credited for this work. Reasonable costs and expenses The Department established at hearing that its Tampa District Office employees incurred expenses of more than $500.00 while investigating this matter. This is based upon the number of hours devoted to the case times the hourly salary rate of the employees. Therefore, the Department is entitled to be reimbursed in the amount of $500.00 for reasonable investigative expenses and costs. Respondent has not disputed the amount of time expended by the employees or their hourly compensation but contends in his Proposed Recommended Order that the matter could have been cleared up by a "simple phone call and a few minutes of effort." Respondent's argument is hereby rejected.
Findings Of Fact The Respondents, Noel S. Brown and Carolyn D. Brown, are the owners of a parcel of land on the shore of the Yellow River, situated near the northeast corner of Government Lot 3, Section 30, Township 1 North, Range 27 west, in Santa Rosa County, Florida. In August, 1980, while engaged in an aerial inspection, an employee of the Department of Environmental Regulation noticed what appeared to be unauthorized filling activities on this property. These filling activities occurred in the Yellow River marsh system. The Yellow River is classified as a Class II water of the State, an Aquatic Preserve, and an Outstanding Florida Water. These classifications entitle the Yellow River to special protection from degradation to its natural landward extent. In response to the violation report submitted by the DER inspector, a warning letter was sent to the Respondents, the purpose of which was to provide them with notice of the alleged violation and the statutes and rules which DER sought to enforce. Such a warning letter is one means by which DER initiates an enforcement proceeding. Several pieces of correspondence were exchanged between DER and the Respondents. DER repeatedly gave the Respondents notice of the statutes and rules which it alleged were being violated. In this correspondence the Respondents acknowledge receipt of the Department's communications. The Respondents also questioned the integrity and character of certain DER personnel and threatened the Department with a lawsuit for trespassing. Due to the threatened trespass action, DER personnel deemed it advisable to obtain a search warrant prior to conducting an on-site inspection of the subject property. Such a warrant was obtained from the County Judge for Santa Rosa County. On June 29, 1981, DER personnel conducted the on-site inspection, and determined that fill activities had taken place in a marsh area adjacent to and contiguous with the Yellow River without a permit from the Department. Access to the property was obtained pursuant to the search warrant. The filling and bulkheading activities conducted by the Respondents around the boatslip occurred in an area dominated by cattail (Typha sp.), with lesser amounts of needle-rush (Juncus roemerianus) and sawgrass (Cladium jamaicensis). Each of these species is listed in Section 17-4.02(17), Florida Administrative Code. The area landward of the boatslip consisted of a broad band of transitional species dominated by salt meadow cordgrass (Spartina patens) and salt grass (Distichlis spicata), both of which are listed in Section 17-4.02(17), Florida Administrative Code, with some Fimbristyus spadicea. The transitional species listed above were, prior to the filling, adjacent and contiguous to an area dominated by needle-rush (Juncus roemerianus) which has, due to the fill, been isolated and impounded. Holes were dug in the fill, and the vegetation covered by the fill consisted of Juncus roemerianus and/or Cladium jamaicensis. The Respondents at no time had a permit from DER to dredge and/or fill, issued pursuant to Chapter 403, Florida Statutes. This activity of the Respondents resulted in the alteration of the chemical, physical, and biological integrity of the waters of the Yellow River, including the marsh area fringing the river, by the destruction of wetlands which provide food and habitat for wildlife, and which provide a filtrative and assimilative capacity to remove nutrients and other pollutants from the lake waters. The discharge of fill onto the marsh areas in waters of the State has resulted in injury to the biological community that existed there. As a result of the violations found on the property of the Respondents, DER served a Notice of Violation and Orders for Corrective Action on them. The Notice of Violation gave the Respondents notice of what DER considered to be violations on their property, and informed them of each statute and rule which DER considered to be violated. The Orders of Corrective Action set forth the following requirements: "A. The Respondents shall conduct no further dredging or filling activities or other construction in waters of the State unless they have obtained the required permit from the Department or unless the Respondents receive notice from the Department that the project is exempted pursuant to Chapter 17-4, Florida Administrative Code. Within 30 days of the effective date of the Orders for Corrective Action, the Respondents shall reimburse the Department for expenses incurred in investigating the violation in the sum of $483.60. Within 45 days of the effective date of the Orders for Corrective Action, the Respondents shall submit a plan of total restoration which shall include the following minimum criteria: Removal of all fill material in the jurisdictional marsh areas to their original contour elevations as indicated by the adjacent marsh areas and by any remaining root mats of marsh grass underlying the fill material. Removal of the bulkhead from the waters of and landward extent of the Yellow River. If natural revegetation or recruitment is determined to be insufficient, the Respondents shall within 30 days of such notice, revegetate the areas with an appropriate, suitable wetland vegetation. The vegetation shall be obtained from adjacent undisturbed marsh areas and planted utilizing 3" x 3" plugs centered 18" apart. Excess spoil materials shall be placed in an approved upland area. The Respondents shall take measures necessary to control and prevent sediment and/or runoff from entering Yellow River during construction, restoration and stabilization of the affected areas. The Respondents shall initiate the restoration immediately upon notification of approval by the Department. In no event shall the restoration period exceed 180 days. In the event the Respondents' restoration plan is not acceptable or in accordance with the minimum features outlined in these Orders, the Respondents shall implement a plan of restoration as directed by the Department. The Respondents shall allow authorized representatives of the Department access to and on the property during reasonable (daylight) hours for the purpose of determining compliance with the Final Order and/or rules and regulations of the Department. Within 60 days of the effective date of the Final Order, the Respondents shall pay to the Department's Pollution Recovery Fund the sum of $4,837.58 for damages occurring to the waters of the State including its landward extent as a result of the unauthorized placement of fill material." The restoration plan proposed by DER is a more desirable alternative to the status quo, in that it would restore much of the marshland vegetation which provides the filtrative and assimilative functions in removing nutrients and other pollutants. In addition, these orders are reasonable and are capable of being completed within the designated time periods. The Notice of Rights contained in the Notice of Violation and Orders for Corrective Action advised the Respondents of their right to contest the DER findings, and informed them how to do so. By letter dated October 8, 1981, the Respondents requested a hearing. This request was sent to the Division of Administrative Hearings on October 20, 1981. The Respondents continue to operate and maintain the stationary installation, consisting of a bulkhead and fill, on the subject property without an appropriate and valid permit from DER.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue a Final Order to the Respondents requiring the following actions: Pursuant to Section 403.141(1), Florida Statutes, the Respondents shall, within 30 days of the effective date of the Final Order, pay to DER the sum of $483.60 for expenses of the State in tracing, controlling, and abating the source of pollution constructed and maintained on the Respondents' land. Within 45 days of the effective date of the Final Order, the Respondents shall submit plans and a compliance schedule for restoration of the unauthorized dredge and fill site, as set forth in the Order for Corrective Action (recited above) or as otherwise acceptable to DER. The Respondents shall completely restore the unauthorized dredge and fill site pursuant to the plan contained in the Order for Corrective Action (recited above), or other plan acceptable to DER, within 180 days from the effective date of the Final Order. Within 60 days of the effective date of the Final Order, the Respondents shall pay damages as outlined in the Order for Corrective Action (recited above). THIS RECOMMENDED ORDER entered on this 3rd day of February, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3 day of February, 1981. COPIES FURNISHED: Mr. Noel S. Brown and Mrs. Carolyn D. Brown 10 Hopson Road Jacksonville Beach, Florida 32250 E. Gary Early, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues in this case are whether Petitioner has standing to initiate this proceeding and whether Respondents Osceola County and Habitat Restoration, Inc., demonstrated their entitlement to the permit modification they are requesting.
Findings Of Fact Background Petitioner resides in Orlando and is a recreational hunter. The District is a multi-purpose water management district, operating pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Chapter 40E. Its principal office is in West Palm Beach, Florida. The County has been an applicant/permittee at all times material to this proceeding. HRI is co-permittee and operates a regional mitigation area near the town of Holopaw. On October 13, 2004, the District issued Environmental Resource Permit No. 49-00121-S-02 ("the Original ERP") to the County, authorizing construction and operation of a surface water management system in conjunction with the widening of Poinciana Boulevard ("the Road Project"). The Road Project is expected to adversely impact 6.61 acres of wetlands. In the Original ERP, mitigation for the wetland impacts was to be provided through the purchase of mitigation credits in the 1600-acre Florida Mitigation Bank (FMB). The Road Project and the wetlands that it would impact are located within the Shingle Creek Drainage Basin. As shown in Petitioner's Exhibit P-6, only a very small portion of the FMB is located within the Shingle Creek Drainage Basin. Almost all of the FMB is within the Reedy Creek Drainage Basin, which is west of the Shingle Creek Drainage Basin. The County applied for a modification of the original permit, and the District issued the ERP Modification to the County and HRI. The ERP Modification changes only the mitigation plan for offsetting the wetland impacts of the Road Project. The ERP Modification calls for mitigation of the wetland impacts of the Road Project through the restoration of wetlands within the regional mitigation area operated by HRI. The proposed HRI mitigation site is within Osceola County, but outside the Shingle Creek Drainage Basin. Standing For the past six or seven years, Petitioner has been hunting within a small area of the FMB, along its eastern boundary, as shown on Petitioner's Exhibit 15. Petitioner hunts there approximately 20 times each year. He hunts for deer, turkey, and hogs. He also enjoys observing nature while he is hunting. The FMB is not open to the general public for hunting. Petitioner hunts in the FMB with the verbal permission of the owner. Petitioner expects the permission he has been given to hunt in the FMB will continue into the future. A fence surrounds the FMB, but deer and turkey can get over a fence and hogs can get under a fence. At the hearing, there was some dispute about the exact location of the boundary that divides the Shingle Creek Drainage Basin from the Reedy Creek Drainage Basin, and in which of the two basins Petitioner hunts. The dispute was caused by the fact that the area where Petitioner hunts is close to the boundary and the official maps of the basins are at such a small scale that the line which depicts the boundary covers a large area. No evidence was presented about the precise location of the topography that divides the basins. The more persuasive evidence in the record is that a small area of the FMB (the acreage was never established) is within the Shingle Creek Drainage Basin and includes the area where Petitioner hunts. Petitioner's primary objection to the ERP Modification is the proposal to mitigate for the loss of 6.61 acres of wetlands by restoring wetlands that are outside the Shingle Creek Drainage Basin. He contends that the ERP Modification will serve as a precedent for future mitigation outside the Shingle Creek Drainage Basin.3 Petitioner's standing argument is that the future mitigation outside the Basin will reduce populations of the wildlife within the FMB where he hunts. Undermining this premise for Petitioner's standing is the fact that drainage basin boundaries are hydrologic boundaries based on patterns of water movement; they are not boundaries associated with wildlife movement. The animals that Petitioner hunts move freely across drainage basin boundaries. Therefore, drainage basin boundaries are not the proper focus for determining whether Petitioner is substantially affected by the proposed ERP Modification. Whether Petitioner is substantially affected depends on the effect the ERP Modification would have on environmental factors (including the quality and extent of wetlands) that determine the populations of wildlife Petitioner enjoys hunting and observing, no matter where those environmental factors are located. Petitioner assumes that all future mitigation outside the Shingle Creek Drainage Basin will be detrimental to his interests. However, Stuart Bradow explained that whether future wetlands impacts and future mitigation would affect Petitioner's interests depends on the proximity of the future impacted wetlands and associated mitigation to the area where Petitioner hunts, without regard to which drainage basin the wetlands and mitigation are located within. Some wetland impacts in the Shingle Creek Drainage Basin would be too distant to adversely affect Petitioner's interests. Some out-of-basin mitigation could be close enough to positively affect Petitioner's interests. Because much of the Shingle Creek Drainage Basin is more distant from Petitioner's hunting area than areas of the Reedy Creek Drainage Basin, it can be reasonably inferred that there could be future mitigation in the Reedy Creek Drainage Basin to offset wetland impacts in the Shingle Creek Drainage Basin that would benefit Petitioner's interests. Petitioner's precedent argument, that all future out- of-basin mitigation will per se be adverse to his interests, is contradicted by the more credible and persuasive evidence in the record. The ERP Modification does not call for any construction or other activities within the area where Petitioner hunts or in any other part of the FMB. The ERP Modification will not physically impact the area within the FMB where Petitioner hunts. The ERP Modification does not reduce the number of acres within the FMB. The ERP Modification will not affect Petitioner's access to the FMB for hunting. The direct and indirect impacts associated with the loss off 6.61 acres of wetlands caused by the Road Project would not adversely affect Petitioner's hunting or nature observation within the FMB. Petitioner's evidence regarding the biological processes that link the alleged future wetland losses within the Shingle Creek Drainage Basin to populations of deer, turkey, and hogs in the FMB was inadequate. There was no evidence presented, for example, about the variability in such game populations, the causes of the variability, and how wetland acreage affects population variability. Petitioner's expert, Tom Odom, acknowledged that drainage basin boundaries do not limit wildlife movement, yet offered an opinion that seemed to assume the opposite. For example, his opinion that Petitioner's enjoyment of deer hunting in the FMB might diminish as a result of the ERP Modification was based on his belief that deer populations would be restricted to "a certain area" and prevented from intermixing. Mr. Odom's opinion was also based on the assumption that HRI's mitigation proposal at its site near Holopaw would not be successful. That opinion contradicts Petitioner's basic contention that the HRI mitigation site is too far away to offset the wetland impacts caused by the Road Project. According to Petitioner, the HRI site is too far away to offset those wetland impacts but close enough to adversely affect Petitioner's hunting in the FMB if the mitigation site fails to function as proposed. Mr. Odom also opined that the elimination of small wetland areas can be detrimental to wildlife and are not mitigated by increasing the size of a large wetland area. However, in this regard there is no difference between the Original ERP and the ERP Modification. Both permits would allow the loss of the small wetlands caused by the Road Project and would mitigate the losses by adding to or enhancing larger, regionally significant wetland areas. Petitioner did not challenge the Original ERP. He cannot collaterally attack in this proceeding the District's previous determination to allow the loss of the small wetlands caused by the Road Project. Petitioner failed to demonstrate that the ERP Modification would reduce populations of deer, turkey, and hogs in the FMB to the extent that Petitioner's enjoyment of hunting would be diminished. Petitioner failed to demonstrate that he will be substantially affected by the District's approval of the ERP Modification. At the hearing, the parties presented evidence on all factual disputes related to the ERP Modification. Therefore, despite the foregoing finding that Petitioner did not demonstrate his standing, findings related to the other factual disputes are set forth below. Cumulative Impact Analysis Pursuant to Subsection 373.414(8)(a), Florida Statutes (2005), the District is required to consider the cumulative impacts upon wetlands and other surface waters within the same drainage basin as the proposed activity. The cumulative impact analysis is supposed to consider existing projects, projects under construction, projects for which permits have been sought, developments of regional impact, and other activities regulated under Chapter 373, Florida Statutes, or which may reasonably be expected based upon local government comprehensive plans. Although Petitioner claimed otherwise, the record shows the District considered these projects and activities in the cumulative impact analysis it conducted for the ERP Modification. Section 4.2.8 of the Basis of Review provides that, when adverse impacts to wetlands are not fully offset within the same drainage basin as the impacts, the applicant must provide reasonable assurance that the proposed activity will not result in unacceptable cumulative impacts to the functions of wetlands within the drainage basin where the impacts would occur. In conducting its cumulative impacts analysis, the District considered future projects within the Shingle Creek Drainage Basin which the District determined would likely have similar impacts. It determined that similar impacts would be caused by future road-widening projects. Petitioner complained that the County did not perform a cumulative impact assessment of the Orange County portion of the Shingle Creek Drainage Basin, but the testimony revealed that was because the District already had this data. The District reviewer who conducted the cumulative impact analysis, Susan Elfers, is also the reviewer for all road projects in the Orlando area. The Florida Department of Transportation routinely provides the District projections of future road projects. Because Ms. Elfers had considerable information regarding Orange County transportation projects, the District did not require the County to provide that information. In performing the cumulative impact analysis, the District is directed by Section 4.2.8 of the Basis of Review to consider the functions of wetlands and other surface waters in the basin "as a whole." Approximately 20,000 acres of the Shingle Creek Drainage Basin lies within Osceola County. Of this total, 4,631 acres are wetlands. More than a quarter of the wetlands are in some form of conservation status. According to the County, there are 3,113 more acres of wetlands proposed for conservation in the Shingle Creek Drainage Basin. Altogether, 94 percent of the wetlands in the Shingle Creek Drainage Basin in Osceola County are either in conservation or proposed for conservation. More than half of the Shingle Creek Drainage Basin lies in Orange County, north of Osceola County. Tom Odom determined that the entire Shingle Creek Drainage Basin was comprised of over 22,000 acres of wetlands, of which 88 percent are protected. Considering the wetland functions of the Shingle Creek Drainage Basin "as a whole," the projected cumulative loss of wetlands associated with road projects represents a very minor impact on the total wetland functions in the Shingle Creek Drainage Basin and a very small fraction of the wetland functions already under protection. As discussed in detail below, the proposed HRI mitigation site will provide substantial environmental benefits to the region. The County and HRI proved by a preponderance of the evidence that the ERP Modification will not result in unacceptable cumulative impacts within the Shingle Creek Drainage Basin. Secondary Impacts In addition to addressing the direct impacts of a project, the District’s Basis of Review requires that a project’s secondary impacts be offset. Petitioner contends that the secondary impacts associated with the ERP Modification were not addressed. However, the record evidence indicates a qualitative analysis of secondary impacts was made by the District to determine whether the HRI mitigation site would offset the secondary impacts of the Road Project. The District determined that the excess value of the proposed HRI mitigation over the lost value of the impacted wetlands was sufficient to offset the relatively minor secondary impacts expected from the Road Project. That determination was reasonable. The Proposed Mitigation Site HRI owns a regional mitigation area of over 2,000 acres. This area includes extensive wetland areas that were significantly degraded by the cattle and agricultural operations of previous owners. Portions of the 2,000-acre tract continue to suffer from over-drainage and widespread exotic nuisance species, including the area which HRI proposes to restore as mitigation for the wetland impacts of the Road Project. The 2,000-acre mitigation area already contains 23 previously approved wetland mitigation projects. Wildlife use of the area has been steadily increasing as each mitigation project has been implemented. The area now supports a high diversity of wildlife, including an impressive array of endangered and threatened animal species. The HRI mitigation site for the ERP Modification consists of 26.1 acres in four separate areas with separate mitigation activities proposed for each area. There would be high level enhancement of 6.8 acres of a forested wetland area, moderate level enhancement of 13.9 acres of mixed forested wetland, four acres of upland buffer enhancement and preservation, and 1.4 acres of herbaceous wetland enhancement. The proposed mitigation will include filling in part of a drainage canal, removing exotic plant species, and planting cypress trees. The mitigation site will be managed for wildlife and protected by a conservation easement. The mitigation proposal for the ERP Modification involves activities that are similar to those that HRI has successfully completed as part of several other mitigation projects in HRI's regional mitigation area. HRI's success with similar mitigation projects provides part of the reasonable assurances that the mitigation authorized by the ERP Modification will also succeed in creating wetlands of high functional value. The proposed offsite mitigation area represents substantially greater wildlife habitat benefits than were provided by the 6.61 acres of wetlands impacted by the Road Project. Petitioner claims that the County and HRI failed to demonstrate that the proposed mitigation site was engineered to allow water movement as needed to create and maintain appropriate hydrologic conditions for the restored wetlands. Petitioner did not claim that the proposed mitigation project was not properly engineered, but only that the District was not provided the kind of engineering analysis usually required for such projects. At the hearing, the District witness, Ms. Elfers, explained that the District's determination that the proposed mitigation project was properly engineered was based in part on information exchanged during meetings with the applicant. Moreover, the County presented an expert engineering witness, John Atkins, who testified about the engineering aspects of the project site related to hydrology and offered his opinion that the project is properly engineered.4 The more persuasive evidence in the record is that the proposed mitigation project is engineered so that the hydrologic aspects of the project will allow for the successful restoration and maintenance of the wetlands involved. Uniform Mitigation Assessment Method The Uniform Mitigation Assessment Method (UMAM), codified in Florida Administrative Code Chapter 62-345, is used to determine the amount of wetland mitigation required. The UMAM methodology provides a standardized procedure for assessing the function provided by wetlands. By examining a number of environmental factors, such as its community structure and its water environment, the UMAM can assess the value of the function being provided by a wetland. UMAM allows for the functional value of a wetland to be quantified and compared to the functional value of other wetlands. A UMAM analysis was performed on both the wetlands that would be impacted by the Road Project and the wetlands that HRI proposes to restore. Under UMAM, the functional gain score for the restored wetlands must at least equal to the functional loss score for the impacted wetlands. The UMAM score determined for the wetlands impacted by the Road Project was 4.47 functional units. The UMAM score determined for the HRI mitigation site was 5.47 functional units. These scores mean that the wetland functional value gain for the proposed HRI mitigation site was determined to more than offset the functional loss that would be caused by the wetland impacts of the Road Project. The four restoration areas within the HRI mitigation site were separately scored using the UMAM methodology. Among the factors considered were time lag and risk. Time lag means “the period of time between when the functions are lost at an impact site and when those functions are replaced by the mitigation.” Fla. Admin. Code R. 62-345.600(1)(a). Mitigation risk refers to the degree of uncertainty in achieving the mitigation objectives. Fla. Admin. Cod R. 62-345.600(2). Petitioner disagreed with the risk factor used to score the HRI mitigation site because, according to Petitioner, no engineering modeling or information was provided for the hydrologic changes that would be required to achieve success. The adequacy of the engineering analysis for the HRI mitigation site was addressed above. The risk factor used in scoring this particular area was reasonable. Petitioner also objected to the time lag values used to obtain the score for the HRI mitigation site areas designated Eastern Forested WL Enhancement (High Level) and the Western Forested WL Enhancement (Moderate). The time values used for these areas equate to an expectation that the functions lost because of the wetland impacts of the Road Project will be replaced within five years. Petitioner contends that expectation is unreasonable because the impacted wetlands contain mature wetland trees which cannot be replaced in five years. The time lag value used, however, does not reflect an assumption that in five years all the trees planted in the mitigation site will be as mature as a particular tree or trees found in the impacted wetlands. The time lag value reflects the time needed for the mitigation site to gain functional values equivalent to the functional values lost. Furthermore, there are already trees in the mitigation site. The more persuasive evidence of record indicates that the time lag value used was reasonable. Petitioner argues that the use of the same time lag factor for the different types of wetland systems in the HRI mitigation site contradicts the "express direction" of Florida Administrative Code Rule 62-345.600(1)(a). That rule, however, merely contains a qualitative statement of the general comparison of time lags for different wetland systems. It does not require that time lags used for different systems must be different. Wetlands are classified into different community types by the Florida Land Use Cover and Classification System (FLUCCS). Petitioner complains that none of the FLUCCS codes for the ecological communities at the HRI mitigation site match the FLUCCS codes of the wetlands proposed to be impacted by Road Project. Petitioner admits, however, that two of the HRI mitigation areas have similar FLUCCS codes. The two areas with dissimilar wetland types are the upland buffer and existing canal that will be restored to a deep water marsh. However, it was never suggested that these two areas were similar to the impacted wetlands. They are simply areas within the HRI mitigation site that are being restored in conjunction with adjacent forested wetlands to enhance the overall diversity and quality of the resulting ecosystem. The more persuasive and competent evidence in the record indicates that the UMAM scores for the impacted wetlands and the mitigation site were reasonable and that they fairly characterized the proposed HRI mitigation as exceeding in functional value what would be lost as a result of the wetland impacts caused by the Road Project.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Governing Board of the South Florida Water Management District enter a final order issuing Modification to Environmental Resource Permit No. 49-00121-S-02 to Osceola County and Habitat Restoration, Inc., subject to the general and special conditions set forth in the District's Staff Review Summary. DONE AND ENTERED this 9th day of August, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 9th day of August, 2006.
The Issue The issue is whether an amendment to Conservation Element policy 6.11.3(3) adopted by Respondent, Bay County (County), by Ordinance No. 09-36 on October 20, 2009, is in compliance.
Findings Of Fact The Parties Diane C. Brown resides and owns property within the County, and she submitted written and oral comments to the County during the adoption process of Ordinance No. 09-36. RMA is a non-profit association with approximately 100 members whose mission is "to ensure that future growth [in the County] is properly managed to maintain the quality and productivity of the local estuarine system." See Petitioners' Ex. 6. The parties have stipulated to the facts necessary to establish that RMA is an affected person. The County is a local government that administers its Comprehensive Plan (Plan). The County adopted the Ordinance that approved the text amendment being challenged here. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. History and Purpose of the Amendment The County adopted its current Plan in December 1999. Section 163.3191(1), Florida Statutes, requires that every seven years each local government adopt an EAR to "respond to changes in state, regional, and local policies on planning and growth management and changing conditions and trends, to ensure effective intergovernmental coordination, and to identify major issues regarding the community's achievement of its goals." In the spring of 2006, the County began the process of preparing an EAR. On October 17, 2006, it submitted an EAR and Supplement to the Department. On December 21, 2007, the Department found the EAR and Supplement to be sufficient pursuant to section 163.3191(2). See County Ex. 7. After approval of the EAR, section 163.3191(10) requires that the local government "amend its comprehensive plan based on the recommendations in the report." Item 15 in the Recommended Changes portion of the EAR recommended that the Conservation Element be amended in the following respect: "The wetland and surface water buffer requirements should be restructured to recognize site-specific conditions such that pristine systems are afforded greater protection than impacted systems." Petitioners' Ex. 35. A similar recommendation is found in the Issues section of the EAR. Id. To implement these recommendations, the County added a second sentence to subsection (3) of Conservation Element policy 6.11.3. As amended, the subsection now reads as follows: (3) Wetland setbacks will be required as specified in Policy 6.7.4 for development on lots or parcels created after the effective date of this policy. Alternate project design and construction may be permitted in lieu of a required buffer when it can be demonstrated that such alternate design provides equal or greater protections to the wetland or its habitat value. On April 16, 2009, the Local Planning Agency conducted a public hearing and recommended approval of the EAR-based amendments. On May 19, 2009, the Board of County Commissioners (Board) voted to transmit the EAR-based amendments to the Department for its review and comments. On July 31, 2009, the Department issued its Objections, Recommendations, and Comments Report. On October 20, 2009, the Board enacted Ordinance No. 09-36, which adopted the EAR-based amendments, including the amendment to policy 6.11.3(3). See County Ex. 2. On December 15, 2009, the Department issued its Notice of Intent to find the amendments in compliance. See County Ex. 8. Notice of this action was published in the Panama City News-Herald on December 16, 2009. See County Ex. 9. Although section 163.3177(6)(d) requires that the conservation element in a comprehensive plan protect wetlands, nothing in chapter 163 or Department rules requires a local government to adopt buffers. Even so, a 30-foot buffer has been in place since the County adopted its first Plan in 1990. Before it was amended, policy 6.11.3(3) provided that "[w]etland setbacks will be required as specified in Policy 6.7.4 for development on lots or parcels created after the effective date of this policy." Thus, it incorporated by reference the buffer zone requirements established in subsection (6) of policy 6.7.4. That provision reads as follows: (6) No building or structure can be located closer than thirty (30) feet from any DEP wetland jurisdiction line, mean high water line, or ordinary high water line except for piers, docks or similar structures and an attendant ten (10) foot wide cleared path through the wetland for purposes of providing access to such structure, or wet- land crossings required to connect dry, upland parcels. All native vegetation, if any exists, will be preserved within the 30- foot setback area. This requirement, including possible alternatives, may be further addressed in the Land Use Code. In short, this provision (a) requires a 30-foot buffer setback area between structures and DEP jurisdictional wetlands and mean or high water lines; (b) requires the preservation of native vegetation in the setback area; and (c) authorizes a 10-foot wide area to be cleared across the setback area to access the water or a dock. However, pursuant to provisions addressed in the Land Use Code (now renamed the Land Development Regulations (LDRs)), alternative project design and construction may be used in lieu of the required buffers. Except for changing the words "Land Use Code" to "Land Development Regulations," policy 6.7.4(6) was not amended in the EAR process. Therefore, all of its requirements remain in place. To address other "alternatives" to the buffer requirements, in September 2004 the County amended section 1909.3.h of the LDRs to allow alternative project design and construction "in lieu of the required buffer when it can be demonstrated that such alternative method provides protection to the wetland or its habitat value that is equal or greater than the vegetated buffer." Petitioners' Ex. 14, p. 19-11. This regulation authorizes the County Planning Commission, on a case- by-case basis through the site plan and variance process, and subject to final approval by the Board, to reduce the 30-foot buffer provided that the reduced buffer is mitigated based upon site-specific circumstances. The processing of these requests has provided the County with experience in approving buffer modifications through the use of alternative methods that provide "equal or greater" environmental benefits. A small number of variances have been authorized by the County under this process since the adoption of the regulation. See County Ex. 10 and 11; Petitioners' Ex. 15-18. In those cases, the County has granted a variance where, for example, the applicant has chosen to cluster wetland access points, elevate walkways in the buffer, enhance the buffer with vegetation or turf, reduce existing stormwater impacts, use swales, or employ other required mitigation to offset the reduction in the buffer. On the other hand, "numerous" other property owners were advised that, absent "special circumstances," a variance would not be granted because the applicant could not demonstrate that there would be an enhanced environmental benefit by reducing the buffer. Under current Plan provisions, a variance is the only way to modify the buffer requirement. The amendment does not eliminate the minimum 30-foot buffer required by policy 6.7.4(6). See Finding of Fact 10, supra. It does, however, provide the County with greater flexibility in approving requests to modify the required buffers and to consider factors that the current Plan does not address. Even though the function and value of wetlands may vary widely, the current Plan makes no distinction between pristine or impacted wetlands, and it does not allow the County to require a larger buffer for a pristine wetland. Under the new policy, the County may establish buffers based on site-specific conditions that consider factors such as location, wetland quality, surrounding land uses, site habitat, and the presence or absence of listed species. This will enable the County, through alternative design and construction techniques, to preserve higher quality wetlands or vegetation with larger buffers while at the same time reducing the buffer size for impacted wetlands in return for mitigation by the owner. The County will also have the flexibility to establish buffers in non-urban settings based on factors other than just erosion potential. The specific process for approving changes in buffer setbacks under the new policy will be established in the LDRs. However, all LDRs must meet the standard in the policy that the alternative design provides "equal or greater protection to the wetland or its habitat value." Under the process envisioned by the County, when a request is made for a buffer reduction under the new policy, the County will require that an analysis be performed by a qualified professional to justify the need for a buffer reduction. If no alternative to a buffer reduction exists, the owner will be required to have a biotic study prepared indicating the extent to which the encroachment would occur, along with justification for the encroachment. Assuming that justification can be shown, the County will then require some form of mitigation by the owner. The effectiveness of the new policy will be monitored, evaluated, and appraised through the use of geographical information system overlay maps. Finally, members of the public, including Petitioners, will be given access to the process through existing notice requirements for development orders. Petitioners' Objections Petitioners contend that policy 6.11.3(3) is internally inconsistent with Conservation Element objectives 6.7 and 6.11; that it is inconsistent with sections 163.3177(6)(d), (8), and (9)(b), 163.3191(10), and 187.201(9); and that it is inconsistent with Florida Administrative Code rules 9J-5.005(2) and (5) and 9J-5.013(1). The essence of the arguments is that the new policy decreases protection for wetlands, that it conflicts with the specific recommendations in the EAR, and that buffers should be based on studies pertaining to wetland setbacks rather than alternative design and construction. To prevail on these contentions, Petitioners must show that even if there is evidence supporting the propriety of the amendment, no reasonable person would agree that the amendment is in compliance. See Conclusion of Law 28, infra. Data and analysis Petitioners contend that the amendment is not supported by adequate and appropriate data and analysis, that the County did not react appropriately to the data and analyses in the EAR, and that the amendment is therefore inconsistent with rules 9J-5.005(2) and 9J-5.013(1) and section 163.3177(8). The data and analysis in the EAR and Supplement, including the Deer Point Reservoir Hydrologic Study, are incorporated by reference into the Plan. See County Ex. 1, Ch. 1, policy 1.1.4.4. As recommended by the EAR, the County reviewed current published scientific literature relating to wetland and surface water buffers. It also conducted a survey of buffer regulations and setbacks in various jurisdictions in the County and throughout the State. As summarized in the EAR, the data and analysis describe the limitations of wetland buffers, including the existing 30-foot buffer; however, they do not suggest that a larger buffer is necessary. Rather, they support the necessity for flexibility in the application of the existing buffer in order to provide equal or greater protection to pristine wetlands, which is the purpose of the new amendment. Petitioners contend that based on current published literature, the County should have reacted to the data and analysis by adopting a series of specific buffer distances up to 300 meters, depending on the type of habitat and wildlife around the wetlands and streams. While the establishment of larger wetland buffers in the Plan is possible, they are not required by state law or Department rules, and section 163.3184(6)(c) provides that a local government does not have to duplicate or exceed a state agency's permitting program. It is at least fairly debatable that the County reacted to the data and analysis in an appropriate manner by adopting a policy that requires that any request for a deviation from the minimum 30-foot buffer be accompanied by a demonstration that the alternative design will provide at least equal or greater protection to wetlands and their habitat values. Internal Inconsistency with Conservation Element Petitioners next contend that policy 6.11.3(3) violates section 163.3177(9)(b) and rule 9J-5.005(5) because it is internally inconsistent with objectives 6.7 and 6.11. The two objectives were not amended during the EAR process. Petitioners contend that the new policy is internally inconsistent with objective 6.7, which requires that the County "[c]onserve and manage natural resources on a systemwide basis rather than piecemeal." Petitioners' evidence does not establish beyond fair debate that the new policy is internally inconsistent with this objective. Petitioners also contend that the policy is internally inconsistent with objective 6.11, which requires the County to "[p]rotect and conserve wetlands and the natural functions of wetlands." Wetlands vary widely in function and value, and the current one-size-fits-all standard does not adequately address the different values and functions. The new policy provides the County with the flexibility to consider numerous site-specific factors and, when warranted, to establish buffers that vary from the 30-foot standard. The evidence shows that the new policy can also assist with the restoration of degraded natural systems to a functional condition. It is at least fairly debatable that the new policy protects and conserves wetlands and their natural functions. Similarly, the policy does not conflict with rule 9J-5.013 and section 187.201(9), which require or encourage that wetlands and other natural functions of wetlands be preserved, as alleged by Petitioners. Consistency with section 163.3191(10) Petitioners contend that the new policy is inconsistent with section 163.3191(10) because the County failed to "amend its comprehensive plan based on the recommendations in the [EAR] report." As a part of this argument, they also assert that, contrary to recommendations in the EAR, the new policy does not give adequate direction for the LDRs; that it contains none of the recommended site-specific criteria needed to evaluate the alternative design; that it fails to include a defined setback size; and that it does not allow the County to increase the size of a buffer. These arguments are based upon item 15 of the Recommended Changes portion of the EAR, which recommends that the County "restructure" the wetland and surface water buffer requirements "to recognize site-specific conditions such that pristine systems are afforded greater protection than impacted systems." Petitioners' Ex. 35. The new policy does not eliminate the 30-foot buffer. See policy 6.7.4(6)("no building or structure can be located closer than thirty (30) feet from any DEP wetland jurisdiction line, mean high water line, or ordinary high water line"). While the policy allows the required buffer to be modified, an applicant must first demonstrate that the alternative design provides equal or greater protection to the wetland or its habitat value. The policy also provides direction for implementing LDRs by requiring that any adopted LDR adhere to the above standard. Notably, through alternative design, the County may require larger buffers for pristine wetlands, while reducing the buffers for those of lower quality in return for mitigation. This is consistent with the EAR recommendation that the County afford pristine systems greater protection than impacted systems. Petitioners further point out that the new policy is flawed because it does not include every site-specific condition mentioned in the EAR. However, there is no requirement for this level of detail in the Plan, so long as the policy achieves the overall recommendation in the EAR, and it provides adequate standards for implementing LDRs. It is at least fairly debatable that the amendment complies with the requirements of the statute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the amendment to policy 6.11.3(3) adopted by the County by Ordinance No. 09-36 is in compliance. DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2011. COPIES FURNISHED: William A. Buzzett, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Deborah K. Kearney, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Diane C. Brown 241 Twin Lakes Drive Laguna Beach, Florida 32413-1413 Alfred E. Beauchemin 705 Beachcomber Drive Lynn Haven, Florida 32444-3419 Lynette Noor, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Terrell K. Arline, Esquire Bay County Attorney 840 West 11th Street Panama City, Florida 32401-2336
