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
Findings Of Fact The Intervenors filed an Application for Dredge and Fill Permit with the Department of Environmental Regulation. The Department entered a notice of its intent to issue a permit. Petitioner requested a formal administrative hearing. The Department forwarded the matter to the Division of Administrative Hearings, where it was given Case No. 82-3155. A Recommended Order which includes Findings of Fact and Conclusions of Law has been entered in Case No. 82-3155. The Findings of Fact and Conclusions of Law set out in the Recommended Order are hereby incorporated into this Final Order and constitute a part of this Final Order. The Petitioner is an association of home owners within a residential development known as "Caloosa." Intervenors are seeking to develop an industrial park on land adjacent to the Caloosa development. Surface and ground waters from the proposed industrial park would drain toward Caloosa. Prior to the Department's entry of the notice of intent to issue a permit to Intervenors, the Department's personnel evaluated the application in free-form proceedings. An environmental specialist who works with the Department as a permit processor proposed to deny the application on account of the fact that Intervenors proposed to fill approximately 70 acres of wetlands, 24 of which were within the Department's permitting authority under Rule 17-4.28, Florida Administrative Code. The administrator of the Department's Dredge and Fill Permitting Section came to the conclusion that denial of the application could not be justified. He felt that the wetlands to be filled served only marginally to preserve water quality in the area. The Intervenors had proposed to artificially create wetland areas in order to compensate for the loss of filled wetland areas. The program administrator suggested to the permit processor that they negotiate to get the Intervenors to create additional artificial wetlands in order to mitigate against any possible adverse effect from the loss of natural wetland areas. These negotiations occurred, and the Intervenors agreed to increase artificially created wetland areas. The Department of Environmental Regulation does not have a rule which provides that its personnel can engage in negotiations respecting a permit application. Negotiations are, however, an inherent part of a permitting process. The Department does not have any written or unwritten policy whereby it accepts such mitigating factors as artificially created wetlands as justifying the filling of natural wetlands. It does not appear that the Department has any rule or nonrule policy concerning mitigation or trade-offs, and it does not appear that the Department has ever had such a rule or policy. The Department does not have a policy of accepting concessions, trade-offs, or mitigating factors so as to allow an applicant to violate the Department's water quality standards. Since there has been a permitting process, such factors as artificially created wetlands have been considered by the Department in determining whether an application meets the Department's criteria for issuance of a permit. The Department's policy is to consider whether an applicant has provided reasonable assurance that the short-term and long-term effects of proposed activities will not result in violations of water quality standards, as required under Rule 17- 4.28(3), Florida Administrative Code. If an applicant has proposed to construct artificial wetlands, the Department would logically consider it in making determinations about granting the permit. There is no evidence in the record of this proceeding from which it could be concluded that the Department has any unpromulgated "mitigation" policy which has the effect of a rule.
Findings Of Fact The Respondent owns property in Lake County, Florida which adjoins North Lake Holly. North Lake Holly is a fresh water lake. On an undetermined date between December, 1975 and September, 1976, the Respondent caused a horseshoe-shaped basin to be dredged along the shoreline of North Lake Holly adjoining his property. The fill material taken from the dredged area was deposited along the shore of the lake to farm a beach. The basin is approximately 90' long, 50' wide, and 6' deep. The Respondent has erected a dwelling house on his property, and it appears that the dredging was done in order to transform the shoreline of the lake from a vegetated littoral zone to a beach and boat basin. The Department confirmed the violations in December, 1976, and sought to negotiate a restoration plan with the Respondent. The formal Notice of Violation was issued an November 17, 1977. The dredged area was previously a shallow littoral zone dominated by wetlands vegetation. The most prevalent vegetation was sawgrass, but there were also abundant quantities of cattails, maidencane, arrowhead, and willows. The dredging activity relates to only a small portion of the shoreline of North Lake Holly. The activity nonetheless has resulted in the alteration of the characteristics of the lake. The marsh area which fringes the lake serves as habitat for fish and other wildlife, and also serves to filter runoff which enters the lake from the uplands. The Respondent's activities have obliterated a portion of the wildlife habitat, and provide an avenue for some uplands runoff to be discharged directly into North Lake Holly without the benefit of being filtered through wetlands vegetation. The quality of waters in central Florida lakes is related directly to the amount of development along the shoreline. The greater degree of alteration of the shoreline, the greater degree of deterioration of water quality, and the greater the deterioration of wildlife habitat. A project of the magnitude of that accomplished by the Respondent may have no clearly measurable impact upon water quality and wildlife habitat since the rest of North Lake Holly is surrounded by a broad littoral zone. The only impact that the project can have is, nonetheless, adverse. If a project such as the Respondent's is approved, the Department could not, consonant with due process and equal protection concepts prohibit further such alterations of the shoreline. It is likely that some aquatic vegetation will reestablish itself along the shoreline of the dredged area. Such a natural restoration will not, however, alleviate the negative impacts of the Respondent's dredging. The steep inclines of the dredged area will allow only a very narrow rim of vegetation, which cannot be expected to provide habitat and protect water quality to remotely the extent of the, previous undisturbed broad littoral zone. Furthermore, in the time since the project was completed, no significant vegetative zone has reestablished itself. It is possible for the Respondent to gain access to the lake for boating and other recreational purposes without totally obliterating the littoral zone that was in the area. The Department has offered a restoration plan which would accomplish this result. The Respondent undertook the dredge and fill activity without seeking a permit from the Department, and he continues to operate what amounts to a stationary installation which will serve as a source of pollutants to North Lake Holly without any valid permit issued by the Department. The Department has spent $229.41 in assessable costs in investigating and attempting to rectify the illegal dredge and fill activity undertaken by the Respondent.
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 issue in this case is whether, and under what conditions, the Respondent, St. Johns River Water Management District (District), should grant Environmental Resource Permit (ERP) No. 40-109-81153-1 authorizing Respondents, Jay and Linda Ginn (Ginns or Applicants), to construct a 136-unit single-family residential development with associated surface water management system.
Findings Of Fact The Parties and Proposed Project Respondent, the District, is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce the cited statutes and Florida Administrative Code Rules promulgated by the District under the authority of those statutes. (Unless otherwise stated, all Florida Statutes refer to the 2003 codification, and all Florida Administrative Code Rules refer to the current codification.) Respondents, Jay and Linda Ginn, are the owners of 47 acres of land located just west of the City of St. Augustine in St. Johns County, Florida. They are seeking ERP Permit No. 40- 109-81153-1 from the District to construct a 136-acre residential community and associated surface water management facilities on the property, to be known as Ravenswood Forest. The 47-acre project site is predominantly uplands, with a large (10.98-acre) wetland (Wetland 1) located on the eastern boundary and completely separating the uplands on the project site from adjacent properties to the east. While the central portion of the site is mostly a sand pine vegetated community, and the western portion is largely a pine flatwood community, there are six other smaller wetlands scattered within the upland areas lying west of Wetland 1, each numbered separately, 2 through 7. The site is currently undeveloped except for some cleared areas that are used as dirt road trails and a borrow pit or pond excavated in the central part of the site. This clearing and excavation was accomplished in the 1980’s for a project that was never completed. The project site is bordered on the north by Ravenswood Drive. On the east lies an existing residential development probably constructed in the 1970’s; to the west of the project site is a power-line easement; and to the south is a Time Warner cable facility. The land elevations at the project site are generally higher on the west and slope off to Wetland 1 on the east. Under current conditions, water generally drains from west to east into Wetland 1. Some water from the site, as well as some water entering the site from off-site properties to the west, flows into the existing pond or borrow pit located in the central portion of the site. Under extreme rainfall conditions, the borrow pit/pond can reach a stage that allows it to overflow and discharge into Wetland 1. Some off-site water also enters Wetland 1 at its north end. Water that originates from properties to the west of the Ravenswood site is conveyed through ditches to the roadside ditch that runs along the south side of Ravenswood Drive. Water in this roadside ditch ultimately enters Wetland 1 at its north end and flows south. Once in Wetland 1, water moves north to south. Water leaves the part of Wetland 1 that is located on the Ravenswood site and continues to flow south through ditches and culverts ultimately to the San Sebastian River. The Wetland 1 system is contiguous with wetlands located on property owned by Petitioner, Marilyn McMulkin. Mrs. McMulkin lives on Hibiscus Street to the east of the project. Mrs. McMulkin is disabled and enjoys observing wildlife from her home. Mrs. McMulkin has observed woodstorks, kites, deer, cardinals, birds, otter, indigo snake, flying squirrels, gopher tortoises, and (more recently) bald eagles on her property or around the neighborhood. Mrs. McMulkin informed the District of the presence of the bald eagle in 2002, but it was not discovered until November of 2003 that there was an eagle nest on the Ginns property in Wetland 1. Petitioner, Diane Mills, owns a house and property on Hibiscus Street to the east of the Project. The proposed stormwater discharge for the Project is to a wetland system that is contiguous with a wetland system that is in close proximity to Mrs. Mills' property. Petitioners' property is not located in a flood plain identified by FEMA. Nevertheless, Petitioners' property experiences flooding. At times, the flooding has come through Mrs. McMulkin's house and exited out the front door. The flood water, which can be 18-24 inches high in some places on Mrs. McMulkin's property, comes across her backyard, goes through or around her house, enters Hibiscus Street and turns north. The flooding started in the late 1980's and comes from the north and west, from the Ginns' property. The flooding started after Mr. Clyatt Powell, a previous co-owner of the Ravenswood property, started clearing and creating fill roads on the property using dirt excavated from the property. The flooding now occurs every year and has increased in duration and frequency; the flooding gets worse after the rain stops and hours pass. The evidence, including Petitioners' Exhibit 1, indicated that there are numerous other possible reasons, besides activities on the Ginns' property in the late 1980's, for the onset and exacerbation of Petitioners' flooding problems, including: failure to properly maintain existing drainage facilities; other development in the area; and failure to improve drainage facilities as development proceeds. The parties have stipulated that Petitioners have standing to object to ERP Permit No. 40-109-81153-1. Project Description As indicated, water that originates west of the project site currently enters the project site in two ways: (1) it moves across the western project boundary; and (2) it travels north to a ditch located on the south side of Ravenswood Drive and is conveyed to Wetland 1. The offsite water that moves across the western project boundary comes from a 16-acre area identified as Basin C (called Basin 4 post-development). The offsite water that moves north to the ditch and enters Wetland 1 comes from a 106.87-acre area identified as Basin D (called Basin 5 post-development). The project’s stormwater conveyance and treatment facilities include two connected wet detention ponds with an outfall to a wetland on the eastern portion of the project site. Stormwater from most of the project site will be conveyed to a pond, or detention area (DA) DA-1, which will be located near (and partially coinciding with the location of) the existing pond or borrow pit. The water elevation in DA-1 will be controlled at a level of 26 feet. Water from DA-1 will spill over through a control structure into a pipe that will convey the spill-over to DA-2. In addition to the spill-over from DA-1, offsite water that currently enters the project site across the western boundary will be conveyed to a wetland area at the southwest corner of the project site. At that point, some of the water will be taken into DA-2 through an inlet structure. The water elevation in DA-2 will be controlled at level 21. Water from DA-2 will be released by a control structure to a spreader swale in Wetland 1. While some of the water conveyed to the wetland area at the southwest corner of the project site will enter DA-2, as described, some will discharge over an irregular weir (a low area that holds water until it stages up and flows out) and move around the southern boundary of the project site and flow east into Wetland 1. Wetland 1 is a 10.98-acre onsite portion of a larger offsite wetland area extending to the south and east (which includes the wetlands on Mrs. McMulkin's property). For purposes of an Overall Watershed Study performed by the Ginns' engineering consultant, the combined onsite and offsite wetlands was designated Node 98 (pre-development) and Node 99 (post- development). From those areas, water drains south to ditches and culverts and eventually to the San Sebastian River. Best management practices will be used during project construction to address erosion and sediment control. Such measures will include silt fences around the construction site, hay bales in ditches and inlets, and maintenance of construction equipment to prevent release of pollutants, and may include staked sod on banks and turbidity barriers, if needed. In addition, the District's TSR imposed permit conditions that require erosion and sediment control measures to be implemented. The District's TSR also imposed a permit condition that requires District approval of a dewatering plan within 30 days of permit issuance and prior to construction. The Ginns intend to retain the dewatering from construction on the project site. Wetland Impacts Onsite Wetlands Wetland 1 is a 10.98-acre mixed-forested wetland system. Its overall condition is good. It has a variety of vegetative strata, a mature canopy, dense understory and groundcover, open water areas, and permanent water of varying levels over the course of a year. These attributes allow for species diversity. Although surrounded by development, the wetland is a good source for a variety of species to forage, breed, nest, and roost. In terms of vegetation, the wetland is not unique to northeast Florida, but in November 2003 an eagle nest was discovered in it. A second wetland area onsite (Wetland 2) is a 0.29-acre coniferous depression located near the western boundary of the site. The overall value of the functions provided by Wetland 2 is minimal or low. It has a fairly sparse pine canopy and scattered ferns provide for little refuge and nesting. Water does stand in it, but not for extended periods of time, which does not allow for breeding of most amphibians. The vegetation and inundation do not foster lower trophic animals. For that reason, although the semi-open canopy would be conducive to use by woodstorks, birds and small mammals do not forage there. A third wetland area onsite (Wetland 3) is a 0.28-acre mixed-forested wetland on the northern portion of the site. The quality of Wetland 3 is low. A 24-inch culvert drains the area into a 600-foot long drainage ditch along the south side of Ravenswood Drive leading to Wetland 1. As a result, its hydroperiod is reduced and, although it has a healthy pine and cypress canopy, it also has invasive Chinese tallow and upland species, along with some maple. The mature canopy and its proximity to Ravenswood Drive would allow for nesting, but no use of the wetland by listed species has been observed. In order to return Wetland 3 to being productive, its hydroperiod would have to be restored by eliminating the connection to the Ravenswood Drive ditch. A fourth wetland area onsite (Wetland 4) is a 0.01- acre portion of a mixed-forested wetland on the western boundary of the site that extends offsite to the west. Its value is poor because: a power line easement runs through it; it has been used as a trail road, so it is void of vegetation; and it is such a small fringe of an offsite wetland that it does not provide much habitat value. A fifth wetland area onsite (Wetland 5) is a 0.01-acre portion of the same offsite mixed-forested wetland that Wetland 4 is part of. Wetland 5 has a cleared trail road through its upland fringe. Wetland 5 has moderate value. It is vegetated except on its upland side (although its vegetation is not unique to northeast Florida), has a nice canopy, and provides fish and wildlife value (although not as much as the interior of the offsite wetland). A sixth wetland area onsite (Wetland 6) is a 0.28-acre wetland located in the western portion of the site. It is a depression with a coniferous-dominated canopy with some bays and a sparse understory of ferns and cord grass that is of moderate value overall. It does not connect with any other wetlands by standing or flowing water and is not unique. It has water in it sufficient to allow breeding, so there would be foraging in it. Although not discovered by the Ginns' consultants initially, a great blue heron has been observed utilizing the wetland. No listed species have been observed using it. Wetland 6 could be good gopher frog habitat due to its isolation near uplands and its intermittent inundation, limiting predation by fish. In addition, four gopher tortoise burrows have been identified in uplands on the project site, and gopher frogs use gopher tortoise burrows. The gopher frog is not a listed species; the gopher tortoise is listed by the State of Florida as a species of special concern but is not aquatic or wetland-dependent. Woodstorks are listed as endangered. Although no woodstorks were observed using Wetland 6, they rely on isolated wetlands drying down to concentrate fish and prey in the isolated wetlands. With its semi-open canopy, Wetland 6 could be used by woodstorks, which have a wingspan similar to great blue herons, which were seen using Wetland 6. However, Wetland would not provide a significant food source for wading birds such as woodstorks. The other surface water area onsite (Wetland 7) is the existing 0.97-acre pond or borrow pit in the southwest portion of the project site. The pond is man-made with a narrow littoral shelf dominated by torpedo grass; levels appears to fluctuate as groundwater does; and it is not unique. It connects to Wetland 1 during seasonal high water. It has some fish, but the steep slope to its littoral shelf minimizes the shelf's value for fish, tadpoles, and larvae stage for amphibians because fish can forage easily on the shelf. The Ginns propose to fill Wetlands 2, 3, 4, and 6; to not impact Wetland 5; and to fill a 0.45-acre portion of Wetland and dredge the remaining part into DA-1. Also, 0.18 acre of Wetland 1 (0.03 acre is offsite) will be temporarily disturbed during installation of the utility lines to provide service to the project. Individually and cumulatively, the wetlands that are less than 0.5-acre--Wetlands 3, 6, 2, 4, and 5--are low quality and not more than minimal value to fish and wildlife except for Wetland 5, because it is a viable part of an offsite wetland with value. While the Ginns have sought a permit to fill Wetland 4, they actually do not intend to fill it. Instead, they will simply treat the wetland as filled for the purpose of avoiding a County requirement of providing a wetland buffer and setback, which would inhibit the development of three lots. Offsite Wetlands The proposed project would not be expected to have an impact on offsite wetlands. Neither DA-1 nor DA-2, especially with the special conditions imposed by the District, will draw down offsite wetlands. The seasonal high water (SHW) table in the area of DA- 1 is estimated at elevation 26 to 29. With a SHW table of 26, DA-1 will not influence groundwater. Even with a SHW table of 29, DA-1 will not influence the groundwater beyond the project's western boundary. DA-1 will not adversely affect offsite wetlands. A MODFLOW model was run to demonstrate the influence of DA-1 on nearby wetlands assuming that DA-1 would be controlled at elevation 21, that the groundwater elevation was 29, and that no cutoff wall or liner would be present. The model results demonstrated that the influence of DA-1 on groundwater would barely extend offsite. The current proposed elevation for DA-1 is 26, which is higher than the elevation used in the model and which would result in less influence on groundwater. The seasonal high water table in the area of DA-2 is 28.5 to 29.5. A cutoff wall is proposed to be installed around the western portion of DA-2 to prevent it from drawing down the water levels in the adjacent wetlands such that the wetlands would be adversely affected. The vertical cutoff wall will be constructed of clay and will extend from the land surface down to an existing horizontal layer of relatively impermeable soil called hardpan. The cutoff wall tied into the hardpan would act as a barrier to vertical and horizontal groundwater flow, essentially severing the flow. A MODFLOW model demonstrated that DA-2 with the cutoff wall will not draw down the adjacent wetlands. The blow counts shown on the boring logs and the permeability rates of soils at the proposed location of DA-2 indicate the presence of hardpan. The hardpan is present in the area of DA-2 at approximately 10 to 15 feet below the land surface. The thickness of the hardpan layer is at least 5 feet. The Ginns measured the permeability of hardpan in various locations on the project site. The cutoff wall design is based on tying into a hardpan layer with a permeability of 0.052 feet per day. Because permeability may vary across the project site, the District recommended a permit condition that would require a professional engineer to test for the presence and permeability of the hardpan along the length of the cutoff wall. If the hardpan is not continuous, or if its permeability is higher than 0.052 feet per day, then a liner will be required to be installed instead of a cutoff wall. The liner would be installed under the western third of DA-2, west of a north-south line connecting the easterly ends of the cutoff wall. (The location of the liner is indicated in yellow on Applicants' Exhibit 5B, sheet 8, and is described in District Exhibit 10.) The liner would be 2 feet thick and constructed of clay with a permeability of no more than 1 x 10-6 centimeters per second. A liner on a portion of the bottom of pond DA-2 will horizontally sever a portion of the pond bottom from the groundwater to negate the influence of DA-2 on groundwater in the area. A clay liner would function to prevent adverse drawdown impacts to adjacent wetlands. The project, with either a cutoff wall or a clay liner, will not result in a drawdown of the groundwater table such that adjacent wetlands would be adversely affected. Reduction and Elimination of Impacts The Ginns evaluated practicable design alternatives for eliminating the temporary impact to 0.18-acre of Wetland 1. The analysis indicated that routing the proposed utility services around the project site was possible but would require a lift station that would cost approximately $80,000 to $100,000. The impact avoided is a temporary impact; it is likely that the area to be impacted can be successfully reestablished and restored; and preservation of Wetland 1 is proposed to address lag-time for reestablishment. It was determined by the Ginns and District staff that the costs of avoidance outweigh the environmental benefits of avoidance. Petitioners put on evidence to question the validity of the Wetland 1 reduction/elimination analysis. First, Mr. Mills, who has experience installing sewer/water pipes, testified to his belief that a lift station would cost only approximately $50,000 to $60,000. He also pointed out that using a lift station and forced main method would make it approximately a third less expensive per linear foot to install the pipe line itself. This is because a gravity sewer, which would be required if a lift station and forced main is not used, must be laid at precise grades, making it is more difficult and costly to lay. However, Mr. Mills acknowledged that, due to the relatively narrow width of the right-of-way along Ravenswood Drive, it would be necessary to obtain a waiver of the usual requirement to separate the sewer and water lines by at least 10 feet. He thought that a five-foot separation waiver would be possible for his proposed alternative route if the "horizontal" separation was at least 18 inches. (It is not clear what Mr. Mills meant by "horizontal.") In addition, he did not analyze how the per-linear-foot cost savings from use of the lift station and forced main sewer would compare to the additional cost of the lift station, even if it is just $50,000 to $60,000, as he thinks. However, it would appear that his proposed alternative route is approximately three times as long as the route proposed by the Ginns, so that the total cost of laying the sewer pipeline itself would be approximately equal under either proposal. Mr. Mills's testimony also suggested that the Ginns did not account for the possible disturbance to the Ravenswood eagles if an emergency repair to the water/sewer is necessary during nesting season. While this is a possibility, it is speculative. There is no reason to think such emergency repairs will be necessary, at least during the approximately 20-year life expectancy of the water/sewer line. Practicable design modifications to avoid filling Wetland 4 also were evaluated. Not filling Wetland 4 would trigger St. Johns County wetland setback requirements that would eliminate three building lots, at a cost of $4,684 per lot. Meanwhile, the impacted wetland is small and of poor quality, and the filling of Wetland 4 can be offset by proposed mitigation. As a result, the costs of avoidance outweigh the environmental benefits of avoidance. Relying on ERP-A.H. 12.2.2.1 the Ginns did not perform reduction/elimination analyses for Wetlands 2 and 6, and the District did not require them. As explained in testimony, the District interprets ERP-A.H. 12.2.1.1 to require a reduction/elimination analysis only when a project will result in adverse impacts such that it does not meet the requirements of ERP-A.H. 12.2.2 through 12.2.3.7 and 12.2.5 through 12.3.8. But ERP-A.H. 12.2.2.1 does not require compliance with those sections for regulated activities in isolated wetlands less than one-half acre in size except in circumstances not applicable to this case: if they are used by threatened or endangered species; if they are located in an area of critical state concern; if they are connected at seasonal high water level to other wetlands; and if they are "more than minimal value," singularly or cumulatively, to fish and wildlife. See ERP-A.H. 12.2.2.1(a) through (d). Under the District's interpretation of ERP-A.H. 12.2.1.1, since ERP-A.H. 12.2.2.1 does not require compliance with the very sections that determine whether a reduction/elimination analysis is necessary under ERP-A.H. 12.2.1.1, such an analysis is not required for Wetlands 2 and 6. Relying on ERP-A.H. 12.2.1.2, a., the Ginns did not perform reduction/elimination analyses for Wetlands 3 and 7, and the District did not require them, because the functions provided by Wetlands 3 and 7 are "low" and the proposed mitigation to offset the impacts to these wetlands provides greater long-term value. Petitioners' environmental expert opined that an reduction/elimination analysis should have been performed for all of the wetlands on the project site, even if isolated and less than half an acre size, because all of the wetlands on the project site have ecological value. For example, small and isolated wetlands can be have value for amphibians, including the gopher frog. But his position does not square with the ERP- A.H., as reasonably interpreted by the District. Specifically, the tests are "more than minimal value" under ERP-A.H. 12.2.2.1(d) and "low value" under ERP-A.H. 12.2.1.2, a. Secondary Impacts The impacts to the wetlands and other surface waters are not expected to result in adverse secondary impacts to the water resources, including endangered or threatened listed species or their habitats. In accordance with ERP-A.H. 12.2.7(a), the design incorporates upland preserved buffers with minimum widths of 15 feet and an average width of 25 feet around the wetlands that will not be impacted. Sediment and erosion control measures will assure that the construction will not have an adverse secondary impact on water quality. The proposed development will be served by central water and sewer provided by the City of St. Augustine, eliminating a potential for secondary impacts to water quality from residential septic tanks or septic drainfields. In order to provide additional measures to avoid secondary impacts to Wetland 1, which is the location of the bald eagles’ nest, the Applicants proposed additional protections in a Bald Eagle Management Plan (BEMP) (App. Ex. 14). Under the terms of the BEMP, all land clearing, infrastructure installation, and exterior construction on homes located within in the primary zone (a distance within 750 feet of the nest tree) is restricted to the non-nesting season (generally May 15 through September 30). In the secondary zone (area between 750 feet and 1500 feet from the nest tree), exterior construction, infrastructure installation, and land clearing may take place during the nesting season with appropriate monitoring as described in the BEMP. Proposed Mitigation The Ginns have proposed mitigation for the purpose of offsetting adverse impacts to wetland functions. They have proposed to provide mitigation for: the 0.18-acre temporary impact to Wetland 1 during installation of a water/sewer line extending from existing City of St. Augustine service to the east (at Theodore Street); the impacts to Wetlands 3, 4 and 7; and the secondary impacts to the offsite portion of Wetland 4. The Ginns propose to grade the 0.18-acre temporary impact area in Wetland 1 to pre-construction elevations, plant 72 trees, and monitor annually for 5 years to document success. Although the easement is 30 feet in width, work will be confined to 20 feet where vegetation will be cleared, the top 1 foot of soil removed and stored for replacing, the trench excavated, the utility lines installed, the trench refilled, the top foot replaced, the area replanted with native vegetation, and re- vegetation monitored. To facilitate success, the historic water regime and historic seed source will give the re-vegetation effort a jump-start. The Ginns propose to restore and enhance a 0.12-acre portion of Wetland 1 that has been degraded by a trail road. They will grade the area to match the elevations of adjacent wetland, plant 48 trees, and monitor annually for 5 years to document success. This is proposed to offset the impacts to Wetland 4. The proposed grading, replanting, and monitoring will allow the area to be enhanced causing an environmental benefit. The Ginns propose to preserve 10.58 acres of wetlands and 3.99 acres of uplands in Wetland 1, 1 acre of upland buffers adjacent to Wetlands 1 and 5, and the 0.01 acre wetland in Wetland 5. The upland buffer will be a minimum of 15 feet wide with an average of 25 feet wide for Wetland 1 and 25 feet wide for Wetland 5. A conservation easement will be conveyed to the District to preserve Wetlands 1 and 5, the upland buffers, and the wetland restoration and enhancement areas. The preservation of wetlands provides mitigation value because it provides perpetual protection by ensuring that development will not occur in those areas, as well as preventing activities that are unregulated from occurring there. This will allow the conserved lands to mature and provide more forage and habitat for the wildlife that would utilize those areas. Mitigation for Wetlands 2 and 6 was not provided because they are isolated wetlands less than 0.5-acre in size that are not used by threatened or endangered species; are not located in an area of critical state concern; are not connected at seasonal high water level to other wetlands; and are not more than minimal value, singularly or cumulatively, to fish and wildlife. As previously referenced in the explanation of why no reduction/elimination analysis was required for these wetlands, ERP-A.H. 12.2.2.1(d) does not require compliance with under ERP- A.H. 12.3 through 12.3.8 (mitigation requirements) for regulated activities in isolated wetlands less than one-half acre in size except in circumstances found not to be present in this case. See Finding 44, supra. The cost of the proposed mitigation will be approximately $15,000. Operation and Maintenance A non-profit corporation that is a homeowners association (HOA) will be responsible for the operation, maintenance, and repair of the surface water management system. An HOA is a typical operation and maintenance entity for a subdivision and is an acceptable entity under District rules. See ERP-A.H. 7.1.1(e) and 7.1.2; Fla. Admin. Code R. 40C- 42.027(3) and (4). The Articles of Incorporation for the HOA and the Declaration of Covenants, Conditions, and Restrictions contain the language required by District rules. Water Quantity To address water quantity criteria, the Applicants' engineers ran a model (AdICPR, Version 1.4) to compare the peak rate discharge from the project in the pre-project state versus the peak rate discharge after the project is put in place. The pre-project data input into the model were defined by those conditions that existed in 1985 or 1986, prior to the partial work that was conducted, but not completed, on the site in the late 1980's. The project’s 1985/1986 site condition included a feature called Depression A that attenuated some onsite as well as offsite stormwater. Because of work that was done on the project site after 1985/1986 (i.e., the excavation of the borrow pit and road-clearing activities in the late 1980's), the peak rate of discharge for the 1985/1986 project site condition was lower than the peak rate of discharge for today’s project site condition. (Flooding at Mrs. McMulkin's house began after the work was performed on the project site in the late 1980's.) Because this partial work conducted in the late 1980's increased peak rate discharge from the site, by taking the pre-project conditions back to the time prior to that work, the peak rate of discharge in the 1985-86 pre-project condition was lower than it would be under today's conditions. The model results indicated that for the 25-year, 24- hour storm event, the pre-project peak rate discharge is 61.44 cubic feet per second (cfs). The post-project peak rate discharge is 28.16 cfs. Because the completed project reduces the pre-project peak rate discharges, the project will not cause any adverse flooding impacts off the property downstream. A similar analysis of the peak rate discharges under pre-project conditions that exist today (rather than in 1986) was compared to peak rate discharges for the post-project conditions. This analysis also showed post-project peak rate discharges to be less than the peak rate discharges from the site using today’s conditions as pre-project conditions. As further support to demonstrate that the project would not cause additional flooding downstream, a second modeling analysis was conducted, which is referred to as the Ravenswood Overall Watershed Model (OWM). The Applicants' engineer identified water flowing into the system from the entire watershed basin, including the project site under both the pre- and post-project conditions. The water regime was evaluated to determine what effect the proposed project will have on the overall peak rate discharges, the overall staging, and the duration of the staging within the basin that ultimately receives the water from the overall watershed. This receiving basin area was defined as the "wetland node" (Node 98 pre- project, and Node 99 post-project). As previously stated, the area within this "wetland node" includes more than just the portion of Wetland 1 that is located on the Ravenswood site. It also includes the areas to the south and east of the on-site Wetland 1 (including properties owned by the Petitioners) and extends down to an east-west ditch located just north of Josiah Street. The project’s surface water management system will not discharge to a landlocked basin. The project is not located in a floodway or floodplain. The project is not located downstream of a point on a watercourse where the drainage is five square miles or more. The project is impounding water only for temporary storage purposes. Based on testimony from their experts, Petitioners contend that reasonable assurances have not been given as to water quantity criteria due to various alleged problems regarding the modeling performed by the Ginns' engineer. Tailwater Elevations First, they raise what they call "the tailwater problem." According to Petitioners, the Ginns' modeling was flawed because it did not use a 19.27-foot SHW elevation in Wetland 1 as the tailwater elevation. The 19.27-foot SHW was identified by the Ginns' biologist in the Wetland 1 near the location of the proposed utility line crossing the wetland and was used as the pre-development tailwater in the analysis of the project site. The post-development tailwater condition was different because constructing the project would change the discharge point, and "tailwater" refers to the water elevation at the final discharge of the stormwater management system. (SW- A.H., Section 9.7) The post-development tailwater was 21 feet, which reflects the elevation of the top of the spreader swale that will be constructed, and it rose to 21.3 feet at peak flow over that berm. For the OWM, the final discharge point of the system being modeled was the east-west ditch located just north of Josiah Street, where the tailwater elevation was approximately 18.1 feet, not the 19.27 feet SHW mark to the north in Wetland 1. The tailwater condition used in the modeling was correct. Petitioners also mention in their PRO that "the Applicants' analysis shows that, at certain times after the 25 year, 24 hour storm event, in the post development state, Wetland 1 will have higher staging than in the predevelopment state." But those stages are after peak flows have occurred and are below flood stages. This is not an expected result of post- development peak-flow attenuation. Watershed Criticism The second major criticism Petitioners level at the Applicants' modeling is that parts of the applicable watershed basins were omitted. These include basins to the west of the project site, as well as basins to the north of the site, which Petitioners lumped into the so-called "tailwater problem." Petitioners sought to show that the basins identified by the Ginns as draining onto the project site from the west were undersized, thus underestimating the amount of offsite water flowing onto the project site. With respect to Basin C, Petitioners' witness testified that the basin should be 60 acres instead of 30 acres in size, and that consequently more water would flow into pond DA-2 and thus reduce the residence time of the permanent pool volume. In fact, Basin C is 16 acres in size, not 30 acres. The water from Basin C moves onto the project site over the western project boundary. A portion of the water from Basin C will be directed to pond DA-2 through an inlet structure, and the rest will move over an irregular weir and around the project site. With respect to Basin D, Petitioners' witness testified that the basin should encompass an additional 20 acres to the west and north. West of Basin D, there are ditches routing water flow away from the watershed, so it is unclear how water from an additional 20 acres would enter the watershed. The western boundary of the OWM is consistent with the western boundaries delineated in two studies performed for St. Johns County. Petitioners' witness testified that all of the water from the western offsite basins currently travels across the project site's western boundary, and that in post-development all of that water will enter pond DA-2 through the inlet structure. In fact, currently only the water from Basin C flows across the project site's western boundary. Post-development, only a portion of water from Basin C will enter pond DA-2. Currently and post-development, the water in Basin D travels north to a ditch south of Ravenswood Drive and discharges into Wetland 1. Petitioners also sought to show that a 50-acre area north of the project site should have been included in the OWM. Petitioners' witness testified that there is a "strong possibility" that the northern area drains into the project site by means of overtopping Ravenswood Drive. The witness' estimate of 50 acres was based on review of topographical maps; the witness has not seen water flowing over Ravenswood Drive. The Ginns' engineer testified that the area north of Ravenswood Drive does not enter the project site, based on his review of two reports prepared by different engineering firms for St. Johns County, conversations with one of those engineering firms, conversations with the St. Johns County engineer, reviews of aerials and contour maps, and site observations. Based on site observations, the area north of the project site drains north and then east. One report prepared for St. Johns County did not include the northern area in the watershed, and the other report included an area to the north consisting of 12 acres. The Ginns' engineer added the 12-acre area to the OWM and assumed the existence of an unobstructed culvert through which this additional water could enter Wetland 1, but the model results showed no effect of the project on stages or duration in the wetland. Even if a 50-acre area were included in the OWM, the result would be an increase in both pre-development and post- development peak rates of discharge. So long as the post- development peak rate of discharge is lower than the pre- development peak rate of discharge, then the conveyance system downstream will experience a rate of water flow that is the same or lower than before the project, and the project will not cause adverse flooding impacts offsite. Petitioners' witness did not have any documents to support his version of the delineations of Basins C and D and the area north of Ravenswood Drive. Time of Concentration Time of concentration (TC) is the time that it takes a drop of water to travel from the hydraulically most distant point in a watershed. Petitioners sought to show that the TC used for Basin C was incorrect. Part of Petitioners' rationale is related to their criticism of the watersheds used in the Ginns' modeling. Petitioners' witness testified that the TC was too low because the distance traveled in Basin C should be longer because Basin C should be larger. The appropriateness of the Basin C delineation already has been addressed. See Finding 71, supra. Petitioners' witness also testified that the TC used for the post-development analysis was too high because water will travel faster after development. However, the project will not develop Basins C and D, and thus using the same TC in pre- development and post-development is appropriate. The project will develop Basins A and B (called Basins 1, 2, and 3 post- development), and the post-development TC for those basins were, in fact, lower than those used in the pre-development analysis. Groundwater Infiltration in DA-2 One witness for Petitioners opined that groundwater would move up through the bottom of DA-2 as a result of upwelling (also referred to as infiltration or seepage), such that 1,941 gallons per day (gpd) would enter DA-2. That witness agreed that if a liner were installed in a portion of DA-2, the liner would reduce upwelling in a portion of the pond. Another witness for Petitioners opined that 200 gpd of groundwater would enter the eastern part and 20,000 gpd would enter the western part of DA-2. Although that witness stated that upwelling of 200 gpd is not a significant input and that upwelling of 20,000 gpd is a significant input, he had not performed calculations to determine the significance. Even if more than 20,000 gpd of groundwater entered DA-2, DA-2 will provide sufficient permanent pool residence time without any change to the currently designed permanent pool size or the orifice size. Although part of one system, even if DA-2 is considered separate from DA-1, DA-2 is designed to provide an additional permanent pool volume of 6.57 acre-feet (in addition to the 20.5 acre/feet provided by DA-1). This 6.57 acre-feet provided by DA-2, is more than the 4.889 acre-feet of permanent pool volume that would be necessary to achieve a 21-day residence time for the 24+ acres that discharge directly into DA-2, as well as background seepage into DA-2 at a rate of 0.0403 cfs, which is more upwelling than estimated by Petitioners' two witnesses. There is adequate permanent pool volume in DA-2 to accommodate the entire flow from Basin C and for water entering through the pond bottom and pond sides and provide at least 21 days of residence time. Water Quality Criteria Presumptive Water Quality The stormwater system proposed by the Ginns is designed in accordance with Florida Administrative Code Rules 40C-42.024, 40C-42.025, and 40C-42.026(4). Wet detention ponds must be designed for a permanent pool residence time of 14 days with a littoral zone, or for a residence time of 21 days without a littoral zone, which is the case for this project. See Fla. Admin. Code R. 40C-42.026(4)(c) and (d). DA-1 and DA-2 contain sufficient permanent pool volume to provide a residence time of 31.5 days, which is the amount of time required for projects that discharge to Class II Outstanding Florida Waters, even though the receiving waterbody for this project is classified as Class III Waters. See Fla. Admin. Code R. 40C-42.026(4)(k)1. Best management practices will be used during project construction to address erosion and sediment control. Such measures will include silt fences around the construction site, hay bales in ditches and inlets, and maintenance of construction equipment to prevent release of pollutants, and may include staked sod on banks and turbidity barriers if needed. In addition, the District proposed permit conditions that require erosion and sediment control measures to be implemented. (Dist. Ex. 1, pp. 8-9, #4; Dist. Ex. 2, p. 1, ##3, 4, and 5, and p. 6, #10). ERP/MSSW/Stormwater Special Conditions incorporated into the proposed permit require that all wetland areas or water bodies outside the specific limits of construction must be protected from erosion, siltation, scouring or excess turbidity, and dewatering. (Dist. Ex. 2). The District also proposed a permit condition that requires District approval of a dewatering plan for construction, including DA-1 and DA-2, within 30 days of permit issuance and prior to construction. The Ginns intend to retain the dewatering from construction on the project site. As previously described, Petitioners' engineering witness sought to show that DA-2 will not provide the required permanent pool residence time because Basin C should be 60 acres in size. Petitioners' environmental witness also expressed concern about the capacity of the ponds to provide the water quality treatment required to meet the presumptive water quality criteria in the rules, but those concerns were based on information he obtained from Petitioners' engineering witness. Those issues already have been addressed. See Findings 77-78, supra. Groundwater Contamination Besides those issues, Petitioners raised the issue that groundwater contamination from a former landfill nearby and from some onsite sludge and trash disposal could be drawn into the proposed stormwater management system and cause water quality violations in the receiving waters. If groundwater is contaminated, the surface water management system could allow groundwater to become surface water in proposed DA-1. St. Johns County operated a landfill from the mid-1950s to 1977 in an area northwest of the project site. The landfill accepted household and industrial waste, which was buried in groundwater, which in turn could greatly enhance the creation of leachate and impacted water. Groundwater flows from west to east in the vicinity of the landfill and the project site but there was conflicting evidence as to a minor portion of the property. The Ginns' witness testified that if the landfill extended far enough south, a small part of the project site could be downgradient from the landfill. But there was no evidence that the landfill extended that far south. Petitioners' witness testified that the groundwater flow varies on the south side of the landfill so that groundwater might flow southeast toward the site. Even if Petitioners' witness is correct, the surface water management system was designed, as Petitioners' other witness agreed, so that DA-1 would have minimal influence on groundwater near the pond. In 1989, sewage sludge and garbage were placed in a pit in the central part of the project site, north of the existing pond, which also is the area for proposed DA-1; and at various times refuse--including a couple of batteries, a few sealed buckets, and concrete--has been placed on the surface of the site. In 1989, to determine the amount of sewage and garbage on the project site, the St. Johns County Health Department chose several locations evidencing recent excavation south of Ravenswood Drive, had the areas re-excavated, and found one bag of garbage and debris such as tree stumps and palmettos. In 2001, an empty 55-gallon drum was on the site; there was no evidence what it once contained or what it contained when deposited onsite, if anything. In addition, trespassers dumped solid waste on the property from time to time. Petitioners' witness searched the site with a magnetometer and found nothing significant. On the same day, another of Petitioners’ witnesses sampled with an auger but the auger did not bore for core or any other type sample; it merely measured groundwater level. In 1985, 1999, and 2000, groundwater offsite of the project near the landfill was sampled at various times and places by various consultants to determine whether groundwater was being contaminated by the landfill. The groundwater sampling did not detect any violations of water quality standards. Consultants for the Ginns twice sampled groundwater beneath the project site and also modeled contaminant migration. The first time, in 2001, they used three wells to sample the site in the northwest for potential impacts to the property from the landfill. The second time, they sampled the site through cluster wells in the northwest, middle, and south. (Each cluster well samples in a shallow and in a deeper location.) The well locations were closest to the offsite landfill and within an area where refuse may have been buried in the north- central part of the site. Due to natural processes since 1989, no sewage sludge deposited onsite then would be expected to remain on the surface or be found in the groundwater. The evidence was that the sewage sludge and garbage were excavated. Although samples taken near the center of the property contained substances that are water quality parameters, they were not found in sufficient concentration to be water quality violations. There is an iron stain in the sand north of the existing pond in the area where pond DA-1 is to be located. Based on dissolved oxygen levels in the groundwater, Petitioners' witness suggested that the stain is due to buried sewage, but the oxygen levels are not in violation of water quality standards and, while toward the low end of not being a violation, the levels could be due to natural causes. No evidence was presented establishing that the presence of the iron stain will lead to a violation of water quality standards. Petitioners' witness, Mr. Boyes, testified that iron was a health concern. But iron itself is a secondary drinking water standard, which is not a health-based standard but pertains to odor and appearance of drinking water. See § 403.852(12) and (13), Fla. Stat. Petitioners argued that the Phase I study was defective because historical activity on the project site was not adequately addressed. But the Phase I study was only part of the evidence considered during this de novo hearing. Following up on the Phase I study, the 2001 sampling analyzed for 68 volatile organics and 72 semi-volatile organics, which would have picked up solvents, some pesticides, petroleum hydrocarbons, and polynuclear aromatic hydrocarbons--the full range of semi-volatile and volatile organics. The sampling in August 2003 occurred because some of the semi-volatile parameters sampled earlier needed to be more precisely measured, and it was a much broader analysis that included 63 semi-volatiles, 73 volatile organic compounds, 23 polynuclear aromatic hydrocarbons, 25 organic phosphate pesticides, 13 chlorinated herbicides, 13 metals, and ammonia and phosphorus. The parameters for which sampling and analyses were done included parameters that were representative of contaminants in landfills that would have now spread to the project site. They also would have detected any contamination due to historical activity on the project site. Yet groundwater testing demonstrated that existing groundwater at the project site meets state water quality standards. Based on the lack of contaminants found in these samples taken from groundwater at the project site 50 years after the landfill began operation, the logical conclusion is that either groundwater does not flow from the landfill toward the project site or that the groundwater moving away from the landfill is not contaminated. Groundwater that may enter the stormwater ponds will not contain contaminants that will exceed surface water quality standards or groundwater quality standards. Taken together, the evidence was adequate to give reasonable assurances that groundwater entering the stormwater ponds will not contain contaminants that exceed surface water quality standards or groundwater quality standards and that water quality violations would not occur from contaminated water groundwater drawn into the proposed stormwater management system, whether from the old landfill or from onsite waste disposal. The greater weight of the evidence was that there are no violations of water quality standards in groundwater beneath the project site and that nothing has happened on the site that would cause violations to occur in the future. Contrary to Petitioners' suggestion, a permit condition requiring continued monitoring for onsite contamination is not warranted. J. Fish and Wildlife Except for the bald eagle nest, all issues regarding fish and wildlife, listed species, and their habitat as they relate to ERP-A.H. 12.2.2 through 12.2.2.4 already have been addressed. When the Ginns were made aware in November 2003 that there was an eagle nest in Wetland 1, they retained the services of Tony Steffer, an eagle expert with over 25 years of experience working specifically with eagles and eagle management issues, including extensive hands-on experience with eagles and the conduct of field studies, aerial surveys, and behavioral observations as well as numerous research projects on the bald eagle. Mr. Steffer visited the Ravenswood site on numerous occasions since the discovery of the nest, made observations, and was integral in the drafting of the Ravenswood BEMP. It is Mr. Steffer’s opinion that the proposed project, with the implementation of the BEMP, will not adversely affect the eagles. This opinion was based on Mr. Steffer's extensive knowledge and experience with eagle behavior and human interactions. In addition, Mr. Steffer considered the physical characteristics of the Ravenswood site and the nest tree, the dense vegetation in Wetland 1 surrounding the nest site, and the existing surrounding land uses, including the existing residential community that lies a distance of about 310 feet from the nest site, the existing roadways and associated traffic, and the school (with attendant playground noise) that is to north of the site. In Mr. Steffer's opinion, the eagles are deriving their security from the buffering effects provided by the surrounding wetland. He observed that the nesting and incubating eagles were not disturbed when he set up his scope at about 300-320 feet from the tree. The BEMP requires that Wetland 1, and the upland islands located within it, be preserved and limits the work associated with the water/sewer line to the non-nesting season. With the BEMP implemented, Mr. Steffer expressed confidence that the Ravenswood eagles would be able to tolerate the proposed activities allowed under the BEMP. The Ravenswood project plans and the BEMP were reviewed by the U.S. Fish and Wildlife Service (USFWS). The USFWS analyzed information in their files relating to projects which proposed activities within the primary zone of an eagle nest and reported abandoned nests. None of the reported abandoned nests could be attributed to human activities in and around the nest tree. Based on the project plans, the terms of the BEMP, and this analysis, the USFWS concluded that the Ravenswood project "is not likely to adversely affect" the bald eagles at the Ravenswood site. According to the coordination procedures agreed to and employed by the USFWS and the Florida Fish and Wildlife Conservation Commission (FFWCC), the USFWS takes the lead in reviewing bald eagle issues associated with development projects. In accordance with these procedures, for the Ravenswood project, the USFWS coordinated their review and their draft comments with the FFWCC. The FFWCC concurred with the USFWS’s position that the project, with the implementation of the BEMP, will not adversely affect the Ravenswood eagles or their nest. This position by both agencies is consistent with the expert testimony of Mr. Don Palmer, which was based on his 29 years of experience with the USFWS in bald eagle and human interactions. Petitioners and their witnesses raised several valid concerns regarding the continued viability of the Ravenswood eagle nest during and after implementation of the proposed project. One concern expressed was that parts of the Habitat Management Guidelines for the Bald Eagle in the Southeast Region (Eagle Management Guidelines) seem inconsistent with the proposed project. For example, the Eagle Management Guidelines state: "The emphasis [of the guidelines] is to avoid or minimize detrimental human-related impacts on bald eagles, particularly during the nesting season." They also state that the primary zone, which in this case is the area within a 750 foot radius of the nest tree, is "the most critical area and must be maintained to promote acceptable conditions for eagles." They recommend no residential development within the primary zone "at any time." (Emphasis in original.) They also recommend no major activities such as land clearing and construction in the secondary zone during the nesting season because "[e]ven intermittent use or activities [of that kind] of short duration during nesting are likely to constitute disturbance." But the eagle experts explained that the Eagle Management Guidelines have not been updated since 1987, and it has been learned since then that eagles can tolerate more disturbance than was thought at that time. Another concern was that the Ravenswood eagles may have chosen the nest site in Wetland 1 not only for its insulation from existing development to the north and east but also for the relatively sparse development to the west. Along those lines, it was not clear from the evidence that the eagles are used to flying over developed land to forage on the San Sebastian River and its estuaries to the east, as the eagle experts seemed to believe. Mr. Mills testified that eagles have been seen foraging around stocked fish ponds to the west, which also could be the source of catfish bones found beneath the Ravenswood nest. But it is believed that the confident testimony of the eagle experts must be accepted and credited notwithstanding Petitioners' unspecific concerns along these lines. Finally, Petitioners expressed concern about the effectiveness of the monitoring during the nesting required under the BEMP. Some of Petitioners' witnesses related less-than-perfect experiences with eagle monitoring, including malfeasance (monitors sleeping instead of monitoring), unresponsive developers (ignoring monitors' requests to stop work because of signs of eagle disturbance, or delaying work stoppage), and indications that some eagle monitors may lack independence from the hiring developer (giving rise, in a worst case, to the question whether an illegal conspiracy exists between them to ignore signs of disturbance when no independent observer is around). Notwithstanding these concerns, Petitioners' witnesses conceded that eagle monitoring can be and is sometimes effective. If Mr. Steffer is retained as the eagle monitor for this project, or to recruit and train eagle monitors to work under his supervision, there is no reason to think that eagle monitoring in this case will not be conducted in good faith and effectively. Even if the Ginns do not retain Mr. Steffer for those purposes, the evidence did not suggest a valid reason to assume that the Ginns' proposed eagle monitoring will not be conducted in good faith and effectively. K. Other 40C-4.301 Criteria – 40C-4.301(1)(g)-(k) 40C-4.301.301(1)(g) - No minimum surface or groundwater levels or surface water flows have been established pursuant to Florida Administrative Code Rules Chapter 40C-8 in the area of the project. 40C-4.301.301(1)(h) - There are no works of the District in the area of the project. 40C-4.301.301(1)(i) - The proposed wet detention system is typical and is based on accepted engineering practices. Wet detention systems are one of the most easily maintained stormwater management systems and require very little maintenance, just periodically checking the outfall structure for clogging. 40C-4.301.301(1)(j) - The Ginns own the property where the project is located free from mortgages and liens. As previously indicated, they will establish an operation and maintenance entity. The cost of mitigation is less than $25,000 so that financial responsibility for mitigation was not required to be established. (Costs associated with the proposed BEMP are not included as part of the Ginns' mitigation proposal.) 40C-4.301.301(1)(k) - The project is not located in a basin subject to special criteria. Public Interest Test in 40C-4.302 The seven-factor public interest test is a balancing test. The test applies to the parts of the project that are in, on, or over wetlands, and those parts must not be contrary to the public interest unless they are located in, on, or over an Outstanding Florida Water (OFW) or significantly degrade an OFW, in which case the project must be clearly in the public interest. No part of the project is located within an OFW. Balancing the public interest test factors, the project will not be contrary to the public interest. 40C-4.302(1)(a)1. - The project will not adversely affect the public health, safety, or welfare or the property of others because the surface water management system is designed in accordance with District criteria, the post-development peak rate of discharge is less than the pre-development peak rate of discharge, and the project will not cause flooding to offsite properties. 40C-4.302(1)(a)2. - Mitigation will offset any adverse impacts of the project to the conservation of fish and wildlife or their habitats, and the BEMP is designed to prevent adverse effects on the Ravenswood eagles. Although active gopher tortoise burrows were observed on the site, the impacts to these burrows are addressed by the FFWCC’s incidental take permit. The mitigation that is required as part of that permit will adequately offset the impacts to this species. 40C-4.302(1)(a)3. - The project will not adversely affect navigation or cause harmful shoaling. The project will not adversely affect the flow of water or cause harmful erosion. The project's design includes erosion and sediment control measures. The project's design minimizes flow velocities by including flat slopes for pipes. The stormwater will be discharged through an upsized pipe, which will reduce the velocity of the water. The stormwater will discharge into a spreader swale (also called a velocity attenuation pond), which will further reduce the velocity and will prevent erosion in Wetland 1. The other findings of fact relevant to this criterion are in the section entitled "Water Quantity." See Findings 61-67, supra. 40C-4.302(1)(a)4. – Development of the project will not adversely affect the legal recreational use of the project site. (Illegal use by trespassers should not be considered under this criterion.) There also will not be any adverse impact on recreational use in the vicinity of the project site. Wetlands 1 and 5 may provide benefit to marine productivity by supplying detritus to the marine habitat, and these wetlands will remain. 40C-4.302(1)(a)5. - The project will be of a permanent nature except for the temporary impacts to Wetland 1. Mitigation will offset the temporary adverse impacts. 40C-4.302(1)(a)6. - The District found no archeological or historical resources on the site, and the District received information from the Division of Historical Resources indicating there would be no adverse impacts from this project to significant historical or archeological resources. 40C-4.302(1)(a)7. - Considering the mitigation proposal, and the proposed BEMP, there will be no adverse effects on the current condition and relative value of functions being performed by areas affected by the proposed project. The proposed project is no worse than neutral measured against any one of these criteria, individually. For that reason, it must be determined that, on balance, consideration these factors indicates that the project is not contrary to the public interest. Other 40C-4.302 Criteria The proposed mitigation is located within the same drainage basin as the project and offsets the adverse impacts so the project would not cause an unacceptable cumulative impact. The project is not located in or near Class II waters. The project does not contain seawalls and is not located in an estuary or lagoon. The District reviewed a dredge and fill violation that occurred on the project site and was handled by the Department of Environmental Regulation (DER) in 1989. The Ginns owned the property with others in 1989. Although they did not conduct the activity that caused the violation, they took responsibility for resolving the matter in a timely manner through entry of a Consent Order. The evidence was that they complied with the terms of the Consent Order. Applicants' Exhibit 30K was a letter from DER dated February 13, 1991, verifying compliance based on a site inspection. Inexplicably, the file reference number did not match the number on the Consent Order. But Mr. Ginn testified that he has heard nothing since concerning the matter either from DER, or its successor agency (the Department of Environmental Protection), or from the District. The evidence was that the Ginns have not violated any rules described in Florida Administrative Code Rule 40C- 4.302(2). There also was no evidence of any other DER or DEP violations after 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order issuing to Jay and Linda Ginn ERP number 40-109-81153-1, subject to the conditions set forth in District Exhibits 1, 2, and 10. DONE AND ENTERED this 16th day of April, 2004, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 16th day of April, 2004.
The Issue Whether petitioner has standing to challenge a consent order negotiated by respondents to resolve an enforcement proceeding? If so, whether the consent order comports with statutes and rules regulating dredging and filling in wetlands?
Findings Of Fact Without securing DER permits, TLC built two dirt roads, one perpendicular to the other, both in Gulf County, east and south of property petitioner John L. Sullivan, Jr. owns and lives on. Between them, the roads, each 20 to 25 feet wide, traversed wetlands (recognized as such by DER regulations and the DER environmental specialist when he visited the site in May of 1990) in three separate places. None of the affected wetlands drain in the direction of petitioner's property. TLC dredged and placed 36-inch culverts before filling at two of the sites, and placed fill at all three sites, constructing roadbed and shoulders. One of the sites, connected by a 200-foot ditch to other wetlands, DER's Larry Taylor eventually characterized as "isolated." He directed TLC to fill the ditch to destroy the connection, on the theory this would divest DER of jurisdiction. At hearing, John L. Sullivan, Jr. testified that the project had not affected him financially, and said he was affected only as a citizen of Florida. The wetlands crossed by the roads drain (or, in one instance, did drain before the ditch was filled) easterly to Stonemill Creek, which flows southeasterly toward the Dead Lakes.
Recommendation It is, accordingly, recommended that DER dismiss the letter or petition with which these formal administrative proceedings began. RECOMMENDED this 10th day of June, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0282 Petitioner's proposed finding of fact No. 1 has been adopted in substance. Petitioner's proposed findings of fact Nos. 2 and 3 pertain to immaterial matters. Petitioner's proposed finding of fact No. 4 was not proven. Respondent's proposed findings of fact Nos. 1, 2, 5, 6 and 10 (i.e. the final proposed finding of fact) have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, a parcel 96 feet by 60 feet was involved at only one of the three sites. With respect to respondent's proposed finding of fact No. 4, the conclusion that "the jurisdictional aspect ceased to exist" is not adopted. With respect to respondent's proposed finding of fact No. 7, whether the violation was "resolved" is a conclusion of law. With respect to respondent's proposed finding of fact No. 8, the allegations of the petition were not proven. With respect to respondent's proposed finding of fact No. 9, not all uncontradicted evidence has been credited. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 John L. Sullivan, Jr. Post Office Box 1298 Wewahitchka, FL 32465 Richard L. Windsor, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Bill R. Hutto, Esquire Hutto, Nabors, Bodiford and Warren 101 East 23rd Street Panama City, FL 32405
The Issue Whether or not Applicant Homecomers, Inc. should be issued a dredge and fill permit upon reasonable assurances that the proposed project meets the requirements of Chapter 403 F.S. and Chapter 17-3 F.A.C.
Findings Of Fact The following Petitioners were represented at formal hearing by J. Stephen Alexander, Esquire: Bill and Penny Halsell Barbara Wayne D. Judy D. Borst Edwin K. Martin J. Stephen Alexander and Torim V. Alexander M. Jerry Prater and James L. Prater Jackie A. Kelly Carol Schaefer Frank A. Schaefer David B. Hoar Lawrence S. Hoar The following Petitioners did not appear for, and were not otherwise represented at, either the formal prehearing conference or the final formal evidentiary hearing: C. Robert Bechin Ben Anderson Resident (signature unintelligible) [possibly also known as Charlie Blitch] Robert Nasife Marie D. Nasife and Robert G. Nasife Kathleen R. Pile and Kevin D. Pile Beverly S. Smith and Greg Smith N. James Hoffner and Bonnie Hoffner 0. Marie D. Nasife Betty Wiant Helen Morgan U. Laura Hoar Y. Rita M. Hoar Neither did any of the foregoing Petitioners listed in this paragraph comply with the terms of either the Order to Show Cause or the Order of Prehearing Instructions entered herein on January 12, 1990. Accordingly, Petitions C, E, F, G, H, K, L, N, O, Q, R, U, and Y should be dismissed. The parties stipulated that the waters of the state which give DER jurisdiction over this project are Class II waters, as defined in Rule 17-3.111 F.A.C. The parties stipulated that the proposed project will not adversely affect the public health, safety or welfare. The parties stipulated that the proposed project will not adversely affect the property of Petitioners. The parties stipulated that the proposed project will not adversely affect navigation in the vicinity of the project. The parties stipulated that the proposed project will not adversely affect recreational values in the vicinity of the project. The parties stipulated that the proposed project will not adversely affect significant historical or archeological resources under the provisions of Section 276.061 F.S. The parties stipulated that the proposed project will not result in adverse cumulative impacts. Applicant Homecomers, Inc. owns a rectangular- shaped piece of property approximately 6.8 acres in size which lies immediately to the south of Palmetto Road in St. Augustine, Florida. It is approximately one-half mile from the Matanzas River. A perimeter ditch runs parallel to three sides of Applicant's property. Water in the perimeter ditch rises and falls with the tides. The eastern boundary of Homecomers' property abuts the westernmost lots in Hawaiian Isles subdivision, except where an elongated pond separates the subdivision lots from Homecomers' property line. Another elongated but smaller pond is more central to the Homecomers parcel. The northeast corner of the property contains another small T-shaped pond. At high tide, the ditch may overflow to one or more of these ponds, further increasing the flow considerably. Neighbors who have had the opportunity to observe the property at high and "`noon" tides describe the property as completely or nearly completely under water at normal high tide. Best estimates appear to show that two-thirds of the 6.8 acres is underwater three or four days in a row, six or seven times per year. No one who testified on behalf of the Applicant had visited the property at high tide. For all practical purposes, Homecomers' entire piece of property is completely within the landward extent of the Matanzas River, a Class II water of the state. The property is connected to the Matanzas River by a 48-inch- diameter culvert. Vegetation on the piece of property includes submerged species, which form a marsh over most of the property, and transitional species, which form a "high marsh." The high marsh area is elevated above the rest of the marsh because of spoil having been placed there in the past. There is also a small area where the spoil is high enough to support upland vegetation. This upland area is next to the location where construction is planned. Homecomers proposes to construct a permanent 40 foot by 40 foot pile- supported house approximately 150 feet south of the center line of Palmetto Road and approximately 90 feet west of the eastern property boundary. The project proposal/permit application calls for the house to be 15 feet above grade. The house and an associated parking area will be connected to Palmetto Road by a 10- foot wide driveway. However, no one who testified on behalf of the Applicant was able to provide any topographical surveys or other plans with researched elevations. The plans provided had been prepared by an engineer only "roughly to scale." Some concerns over precisely how the Applicant could make adequate provisions for utility and sewage connections were raised by Mr. Nock, a local St. Johns County contractor, but these problems were not insurmountable, even by Mr. Nock's estimation. The driveway and parking area will replace an existing jeep trail which, after leveling, will be covered with six inches of coquina. DER's Intent to Grant specifies that all fill be stabilized. The ditch which the driveway crosses has been viewed to regularly contain twelve to fourteen inches of standing water. The evidence of Mr. Tyler is to the effect that a driveway on pilings would be preferable to, but more expensive than, a coquina-based driveway, but the coquina driveway as proposed meets DER's assessment that there will be no significant negative environmental impact from the driveway. The vegetation on the existing jeep trail is of the high marsh variety and is sparse. The driveway and parking area will not be surfaced with asphalt or any other impervious material. An 18-inch diameter culvert, 18 feet long, will be placed beneath the driveway at the point at which it crosses over the perimeter ditch. Existing culverts in the vicinity are 16 inches in diameter. The Applicant's proposal is comparable or slightly preferable to these existing culverts which are functioning satisfactorily without adding to road or property flooding. After some temporary construction damage to the ground vegetation, which may reasonably be expected to "grow back" or otherwise correct itself in time, construction of the proposed driveway and parking area will permanently eliminate only approximately 1900 square feet of high marsh wetlands, and construction of the house will shade, to varying degrees, 1600 square feet of high marsh wetlands. The permanent shade under the completed house may be expected to permanently destroy certain ground vegetation directly under the house, but equally acceptable ground vegetation may be reasonably expected to take its place as the ecosystem naturally adjusts to the man-made intrusion. Because of the natural passage of the sun from east to west, the shade around the house caused by the house will also move in a shifting east-to-west pattern each day, and this type of shade is not considered significantly damaging to vegetation. At present, the daily tidal water flow moves over the existing jeep trail between the perimeter ditch and "T" pond. The 18-inch culvert will not obstruct this flow. Rather, it should allow a more direct connection. During "moon tides," approximately six or seven times a year, the high marsh and upland areas of Homecomers' property are covered with water. At these times, water will flow directly from the "T" pond to the large, elongated, narrow pond and then to the perimeter ditch which lies to the south of Homecomers' property. The proposed project will not impede that flow since it is not to be constructed in the usual flow-way. The proposed project will not cause harmful erosion or shoaling. Erosion and shoaling result from the rapid flow of water which lifts material from one point (erosion) and deposits it at a different point (shoaling). Since the flow of water around Homecomers' property is tidal, it moves very slowly, and no erosion or shoaling, much less harmful erosion or shoaling, is expected. Although some disruption is inevitable, no wildlife will be destroyed by construction of the proposed project. Many types of birds feed in the ponds and perimeter ditches, but the proximity of these areas to Palmetto Road and to existing houses does not affect such feeding at the present time, and the evidence presented was insufficient to show that the addition of the proposed house and driveway will have an ecologically significant impact on the feeding habits of the birds actually observed, and it is unclear if any of the birds observed are officially classified as either "endangered" or "threatened." Thus, the proposed project will have no discernible effect upon wildlife or its habitat. Disruption to the fish in the area is probable but unquantified. It is the "low marsh," not the "high marsh," which is considered to constitute a fish "nursery" in the ecosystem, but when high or "moon" tides cover the high marsh to a depth in which fish can swim, the high marsh can be considered to serve as fish habitat. However, since such flooding is infrequent, and since the vegetation to be destroyed by the driveway is sparse, the impact upon fish habitat will be minimal. The effect of the proposed project on marine productivity is unquantified and predicted to be minimal. A project can negatively impact marine productivity by either damaging water quality or by eliminating wetland areas which, as plants disintegrate, provide marine life with tiny organic food particles. Since the area to be covered with coquina is sparsely vegetated and infrequently flooded, its contribution to the food chain is not significant. Although Dr. Tropino-Rosenthaul testified as an expert marine biologist that larval forms are susceptible to petroleum products, the degree of impact of oil and grease that might be discharged from motor vehicles using the driveway and parking area would be small, and their impact is subject to a lot of variables, including but not limited to dilution, runoff quantity and velocity, and whether or not the surface is pervious or impervious. Petitioners concede that high tides increase the flow in the ditch, and it must be inferred that such greater velocity and dilution with such increased flow would continue. To date, there is no data to quantify what amount or concentration of oil and grease would harm the larvae present in this location, but in order to minimize impacts from any oil and grease leaks on the property, the driveway and parking area are to be constructed of coquina (pervious or porous material), rather than asphalt (impervious material), so that any drips will proceed downward into the soil rather than laterally into surface waters. Oil and grease which does not adhere to the coquina or ground beneath it would be washed into the surface water only on those occasions when the driveway and parking area are flooded. During such flood tides, the greater volume of water will help dilute any oil or grease which is washed into the water. Dr. Tropino-Rosenthaul candidly described most of the damage to be feared as already having occurred when impervious public roadways were cut through the area. In comparison, this project's potential damage is extremely small. For the foregoing reasons, the project will have a slight, but unmeasurable negative impact on water quality and an unquantified effect on marine production. For the foregoing reasons, this is a "borderline case" in the opinion of DER's Mr. Tyler, who felt that the Applicant's willingness to give DER a conservation easement in mitigation of the sporadic and unquantified potential harm this project might cause made granting of this permit in the State's best interest. The proposed conservation easement agreement is made pursuant to Section 704.06, F.S. and is a condition of the Intent to Grant. It is intended to offset any adverse impacts resulting from the proposed project. The easement will ensure that 280,640 square feet of the parcel's 283,400 square feet (1 acre 43,560 square feet) will remain unaltered and continue to function as a productive wetland.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order: (l) Dismissing Petitions C, E, F, G, H, K, L, N, O, Q, R, U, and Y; Denying the relief sought in Petitions A, B, D, L, J, M, P, S, T, V, W, and X; and Approving the Homecomers Application by issuance of a dredge and fill permit as conditioned by the Intent to Grant. DONE and ENTERED this 9th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-5270 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): PFOF of Petitioners A, B, D, I, J, J, S, T, V, X, and W: 1 The stipulation as orally modified at formal hearing is accepted and incorporated in the Recommended Order (RO) as appropriate. 2-3 Rejected as COL, not FOF, as cumulative, and because there was no proof that the species proved to be present were listed as "endangered" or "threatened" by any recognized authority. 4 Rejected as not supported by the record as a whole. 5,8 Rejected as COL, not FOF, as cumulative, and because not supported by the record as a whole. 6-7 Accepted that water quality standards would be minimally adversely affected as set forth in the RO but these are COL, not FOF as stated. Also, Dr. Rosenthal testified that he was unfamiliar with the standards to be applied in this type of proceeding. 9-11 Rejected as COL, not FOF, and as not supported by the record as a whole. Respondent' s PFOF: 1-6 Accepted as modified to better reflect the credible, competent, substantial evidence as a whole. 7-16 Accepted as modified to exclude COL and to better reflect the credible, competent, substantial evidence as a whole. No other proposals have been received to date. COPIES FURNISHED: Rita M. Hoar 15 Hawaiian Boulevard St. Augustine, Florida 32084 F. Resident (possibly also known as Charlie Blitch] 330 Palmetto Road St. Augustine, Florida 32084 K. Kathleen R. Pile Kevin D. Pile 32 Hawaiian Boulevard St. Augustine, Florida 32084 G. Robert M. Nasife 5494 Fourth Street St. Augustine, Florida 32084 B. Kuehn 72 Aloha Circle St. Augustine, Florida 32084 Betty Wiant 64 Kon Tiki Circle St. Augustine, Florida 32084 H. Marie D. Nasife Robert G. Nasife 270 Palmetto Road St. Augustine, Florida 32084 E. Ben Anderson 5443 Fourth Street St. Augustine, Florida 32084 C. Robert H. Bechin 101 Hawaiian Boulevard St. Augustine, Florida 32084 U. Laura Hoar 7 Hawaiian Boulevard St. Augustine, Florida 32084 O. Marie D. Nasife 5489 Third Street St. Augustine, Florida 32084 P. R. M. Kuehn 5494 Atlantic View St. Augustine, Florida 32084 R. Helen Morgan 20 Hawaiian Boulevard St. Augustine, Florida 32084 L. Beverly S. Smith Greg Smith 5495 Fourth Street St. Augustine, Florida 32084 N. James Hoffner Bonnie Hoffner 5536 Sunset Landing Circle St. Augustine, Florida 32084 J. Stephen Alexander, Esquire [for Petitioners, A, B, D, I, J, M, S, T, V, X, and W] Upchurch & Alexander P.A. 200 First Union Bank Building Post Office Box 3956 St. Augustine, Florida 32085-3956 Homecomers, Inc. c/o J. M. Moore Harbor Engineering Co., Inc. 1615 Huffingham Road Jacksonville, Florida 32216 William H. Congdon, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue to be determined is whether the applicants, William Guererro and Christina Bang, a/k/a Christina Guerrero (Applicants), are entitled to issuance of a Consolidated Environmental Resource Permit and State Lands Approvals for various structures on the Applicants’ property at 58458 Overseas Highway, Marathon, Florida.
Findings Of Fact The Parties Petitioners Bernard Spinrad and Marian Spinrad are the owners of adjoining parcels of property with the addresses of 58418 and 58420 Overseas Highway, Marathon, Florida. They acquired the property in December 2001. They recently completed construction of two residential structures on the properties. The structure at 58418 Overseas Highway is currently listed for sale. The structure at 58420 Overseas Highway is a vacation rental property. Neither structure is Petitioners’ permanent residence. The DEP is the state agency with the power and duty to regulate activities in waters of the state pursuant to chapter 373, Florida Statutes. The DEP also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund (“Board of Trustees”) to review and act on activities on state sovereignty submerged lands under chapter 253. The Applicants, are the owners of adjoining parcels of property with the address of 58478 Overseas Highway, Marathon, Florida (the Property). They purchased the Property in June 2010. The structures that are the subject of the Permit are to be constructed near or waterward of the shoreline of the Property. The Property The Property is located on Grassy Key, an island in the middle Florida Keys, within limits of the city of Marathon, Monroe County, Florida. U.S. Highway 1 passes through Grassy Key. The Property -- as is that of Petitioners -- is situated between U.S. Highway 1 and the open waters of the Atlantic Ocean. In the early part of the 20th century, a portion of Grassy Key was platted as the Crains Subdivision. The properties owned by Applicants and Petitioners are within the Crains Subdivision. During the periods of time directly relevant hereto, the Property has been owned by Burgess Levine, who owned the property during the period prior to the October 2006, landfall of Hurricane Wilma until June 2010, and by Applicants, who have owned the Property since June, 2010. Grassy Key Grassy Key is three-miles long, and has 6800 feet of beaches, none of which are designated as critically eroded. The island fronts the Atlantic Ocean to the east, and the more protected waters of Florida Bay to the west. The waters along the Atlantic Ocean shoreline of Grassy Key in the area at issue are shallow, with an extremely flat bottom having a very gradual slope of approximately 1 to 30, meaning there is a one foot vertical change over 30 horizontal feet. The mean tide range at the Property is about 1.7 feet. Under normal conditions, the stretch of Grassy Key at issue is fairly characterized as a zero-wave energy shoreline. Waves break well offshore and there is negligible wave energy propagating beyond that point. What shoreline energy exists is produced by small tide currents and wind-shear on the water surface that moves water along the shoreline. The direction of the water movement is dependent on tides and wind direction, with the predominant direction being from north to south. Erosive and other significant changes to the shoreline of Grassy Key, including that stretch fronting the Property, are event driven, meaning when there is a coastal storm that causes a rise in the water level, substantially higher than the astronomical tide, waves can propagate onto the shoreline of Grassy Key. The wind and waves can come from virtually any direction depending on the storm. A storm of greater intensity will create higher energy-wave conditions. Although storm conditions may only occur over 1 to 3 percent of a given year, with the rest of the year having zero-wave energy, on average the coastline may be considered to be of moderate-wave energy. The beach sediment along the Grassy Key shoreline in all areas pertinent hereto consists of calcareous material, made up of the breakdown of corals and coralling algae, with a significant fraction of other detrital marine material. The upper beaches of Grassy Key, including that on the Property, generally consist of coarse, calcareous sand with a small fraction of calcareous silt-size particles. The inter-tidal areas along Grassy Key consist of predominantly fine calcareous sand, with a greater fraction of calcareous silt. Extending out into the nearshore area all along Grassy Key, including that fronting the properties owned by Petitioners and Applicants, the sediment becomes a very fine calcareous sand, with a greater fraction of the material being calcareous silts and clays, and with a substantial amount of organic mud of a marine origin, classified as Islamorada muck. Since at least the 1970s, one wading in the nearshore waters along Grassy Key could expect to sink into the surface muck to a depth of anywhere from six inches to two feet. The depth of muck becomes less as one moves further out and approaches the offshore Thalassia beds. Although some areas offer more resistance than others, it is routine to experience difficulty in walking and wading along the coast of Grassy Key because of the high percentage of clays and silts in the substrate. The band of muck narrows as one proceeds towards the northern stretches of Grassy Key, until one reaches the furthest areas to the northeast where the nearshore transitions to exposed rock and hard bottom. The surface muck that exists in the nearshore waters of Grassy Key, having a sizable component of decaying organic material, gives off an odor of hydrogen sulfide when disturbed that some find to be unpleasant. The odor is a naturally- occurring condition of the sediment, and is common in mucky areas all around the southern coasts of Florida. The suggestion that the shoreline in the vicinity of the Petitioners’ property, and that of Applicants, was a naturally occurring white, sandy beach is contrary to the greater weight of the evidence. To the extent the shoreline at Petitioners’ property may have been temporarily altered by the overwash from Hurricane Wilma as discussed herein, Petitioners’ own post-Wilma man-made efforts at beach stabilization, or the redistribution of sediments occasioned by Hurricanes Isaac and Sandy in 2012, the evidence demonstrates the “mucky” condition described herein to be more consistent with the natural and long-standing conditions of Grassy Key. Thus, as Grassy Key exists in the present time, one may expect to encounter six inches to two feet of loose muck anywhere along the nearshore area. Close to shore of Grassy Key are scattered beds of Halodule, a species of seagrass that tends to emerge and grow in shallow waters. The growth of Halodule is influenced by the nature of the sediments, the salinity temperature, and clarity of the water. Storm events have a significant effect on its growth. Given its transient nature, Halodule may vary in any given area from nonexistent, to spotty, to well-established beds. As one moves further offshore, the Halodule transitions to large, continuous beds of Thalassia. Thalassia grows in deeper water, and is common to a depth of about 12 feet. Being deeper and less affected by storm energy, the line of the Thalassia beds off of Grassy Key has not substantially changed over time. As wind and waves come across the grass beds, and as tides ebb and flow, grass blades are cropped. The amount of grass varies seasonally to a degree. The cropped and dislodged seagrasses, along with other organic material entrained therein, are naturally carried by the tides and wind and stranded along the shoreline. The stranded material is known as wrack, and the line of stranded material is known as the wrack line. Grassy Key is well known for the large seagrass wracks that pile up on the shoreline. A wrack line is a normal and natural occurrence in marine environments like that of Grassy Key, and can be a good indicator of the upper edge of the water action at a particular time. The cropping and dislodging of seagrass is accentuated during major or minor storm events. During Hurricane Rita in 2005, a very large seagrass wrack was blown onto the shoreline of Grassy Key. It was subsequently blown back out to sea by the overwash from Hurricane Wilma. The decomposition of the seagrass and other organic materials creates a significant odor that is not uncommon. That odor of decomposing material is well-recognized as being associated with Grassy Key. Areas along the shoreline of Grassy Key have been used by sea turtles for nesting. However, the nature of the substrate in the area of the Property is not optimal for nesting. Generally, sea turtles require a nesting site with 15 to 20 inches of sand above the water table so as to allow them to dig a suitably deep and dry cavity for their eggs. The natural substrate along the section of Grassy Key at issue is coarser and more difficult to dig into, and does not have the depth of sand for the best chance of a successful nest. Despite the nature of the substrate, Petitioner testified as to her observation of turtle nests along her property in each year from 2006 through 2010. Since the SW Groin, the Mid-bulkhead, and the NE Groin were all in existence and functioning during that period, with work to the SW Groin having been completed by 2008, the preponderance of the evidence demonstrates that those structures have no effect on the success or failure of sea turtles to nest along the property. To the extent nesting has been disrupted since 2011, the most logical inference that can be drawn from the evidence is that such disruption is the result of the Mid-Jetty Extension, which is slated for removal under the terms of the Permit. The preponderance of the evidence demonstrates that the structures and activities authorized by the Permit will have no adverse effect on sea turtles. Hurricane Wilma In October, 2005, Grassy Key was pounded by Hurricane Wilma. The storm passed to the north, and created a substantial storm surge that moved from west to east across Grassy Key. The storm surge created a “ridge and runnel” effect on the Atlantic facing shoreline, with the channelization of the storm tide flow creating erosion and gullies on upland shore-adjacent properties. The storm surge and flooding across Grassy Key caused substantial wash-outs of sand; transported a large volume of sandy, upland sediments into the nearshore waters of the Atlantic Ocean; and created washover “fans” of material along the shoreline of Grassy Key. The effects of the Hurricane Wilma storm surge manifested just north of the Property, became substantial at the Property, and continued south down the shoreline for a considerable distance. At the Property, sand was pushed from 50 to 100 feet waterward from the existing shoreline, and a substantial runout was created running parallel and north of the SW Jetty. The sand pushed into the water buried everything in its path, including seagrasses. In short, the post-Wilma shoreline from the Property south along Grassy Key was left in a completely disrupted state. The nearshore waters fronting the properties owned by Petitioners and Applicants were affected by the deposition of sandy, upland sediments, which temporarily created areas of substantially harder-packed sediment. Over time, as the shoreline equilibrated and the sandy sediment distributed through a broader area, more typical shoreline conditions returned. The photographic evidence demonstrates that the Mid- bulkhead and the SW jetty structures were impacted by the Hurricane Wilma storm surge. In addition, the sandy area between the mid-bulkhead and the SW jetty was pushed seaward from its previous location. The scars from Hurricane Wilma remain evident through the most recent aerial photographs received in evidence. It is visually apparent that seagrass, though reappearing in patches, has not reestablished in the nearshore areas along the affected shoreline of Grassy Key -- including the areas in front of the Property and the property owned by Petitioners -- to the extent that it existed prior to the storm. Post-Wilma Activities When Hurricane Wilma hit, the Property was owned by Burgess Lea Levine. Not long after Hurricane Wilma, Ms. Levine shored up the SW Jetty, and performed work in the “beach” area between the mid-bulkhead and the SW jetty. The photographic evidence also supports a finding that the rock outline of the Mid-jetty was reestablished to its pre-Wilma configuration. The repairs to the SW Jetty resulted in a structure that is virtually indistinguishable in size and shape to the SW Jetty as it presently exists. The wrack line at the beach area after it was “worked” following the passage of Wilma, shows the area in which work was done to be generally consistent with -- though slightly seaward of -- the 2005 post-Wilma shoreline. In 2008, Ms. Levine applied for a series of exemptions and for consent of use for state-owned lands for “shoreline repair, replace earthen ramp with a concrete ramp, repair wood deck, replace mooring piles & maintenance dredge existing channel w/in Atlantic Ocean.” On September 19, 2008, the DEP issued a regulatory authorization and proprietary submerged land approval. The Rights of Affected Parties that accompanied the September 19, 2008, notice provided that “[t]his letter acknowledges that the proposed activity is exempt from ERP permitting requirements” and that “this determination shall expire after one year.” The notice of Rights of Affected Parties did not apply to the proprietary authorization. At some time after issuance of the regulatory authorization, Ms. Burgess initiated additional work to repair the SW Jetty. The photographic evidence, which is persuasive, indicates that the work on the SW Jetty, including the concrete cap, was complete by the end of 2008. When Applicants purchased the Property, the determination of exemption issued in 2008 had, by application of the notice of Rights of Affected Parties, expired. Shortly after the Applicants purchased the property, they had the existing family home demolished. Applicants intend to construct a winter vacation home for their personal use on the property. 2012 Storms In August and October 2012, Grassy Key was subject to event-driven conditions as a result of the passage of Hurricanes Isaac and Sandy. Those storms redistributed large areas of sediments that had been moved offshore by the effects of Hurricane Wilma. The Proposed Permit The February 20, 2013, Permit provides that the structures described herein do not require the issuance of an Environmental Resource Permit, subject to the criteria and conditions in Florida Administrative Code Rule 40E-4.051. The Permit provides that the boat ramp is eligible to use the general permit in Florida Administrative Code Rule 62-330.417, the repair and replacement of the dock is exempt pursuant to section 403.813(1)(b), Florida Statutes, the maintenance dredging of the Channel is exempt pursuant to section 403.813(1)(f), and that the repair and replacement of the NW Jetty, the SW Jetty, and the Mid-bulkhead are exempt because the structures are “historic in nature and pre-dates Department regulations.” In addition to the regulatory authorizations, the Permit granted proprietary authorization by Letter of Consent for the dock pursuant to Florida Administrative Code Rule 18- 21.005(1)(c)4., and for the Channel, the NW Jetty, the SW Jetty, and the Mid-bulkhead pursuant to rule 18-21.005(1)(c)7. The Permit established the mean high-water line as that existing in 1974 and depicted on the “Richmond Survey.” Proprietary authorization for the boat ramp was determined to be unnecessary due to its location above the mean high-water line. Finally, proprietary authorization for the “Sandy Area” or beach between the Mid-bulkhead and SW Jetty was granted by Letter of Consent pursuant to rule 18-21.005(1). On September 20, 2013, the DEP filed a Notice of Additional Grounds for Exemption Determination, in which it found each of the structures subject to the regulatory review to “have only minimal or insignificant individual or cumulative adverse impacts on water resources” and to thus be exempt from the need to obtain an Environmental Resource Permit pursuant to section 373.406(6), Florida Statutes. On December 12, 2013, Applicants filed a Notice of Filing Proposed Changes to the Pending Agency Action in which they agreed to certain additional conditions, and which referenced the October 1, 2013, repeal of rule 40E-4.051, and its replacement by the “Statewide ERP rules.” For purposes of this de novo proceeding, the proposed Permit at issue includes the February 20, 2013, Permit; the September 20, 2013, Notice of Additional Grounds for Exemption Determination; and the December 12, 2013, Notice of Filing Proposed Changes to the Pending Agency Action. The Proposed Structures Groins There has been some confusion relating to the names of the structures that are subject to the proposed Permit. Two of the structures are referred to as jetties, the NE Jetty and the SW Jetty, and the middle structure is referred to as the Mid- bulkhead. A jetty is a navigation structure that is constructed at a barrier inlet. Its purpose is to stabilize the inlet and prevent shoaling by “jetting” current and wave-driven sand further offshore, such that the offshore bar is moved into deep enough water to allow navigation in and out of the tidal inlet, and allowing the tidal current between the ocean and the receiving body of water to keep the inlet scoured and open. There are 48 jetties on the open coast of Florida, none of which are in the Florida Keys. A groin is a structure designed for shore protection purposes. A groin is typically aligned perpendicular to the shoreline, or “shore normal.” The structures identified in the Permit as the NE Jetty and the SW Jetty are clearly groins, and not jetties. The mid-bulkhead is a groin, generally for shore confinement, with a channel-facing bulkhead. For purposes of continuity, the structures will be identified by the names given them in the Permit. Since there is negligible wave energy along the shoreline normal conditions, the groins have little or no day- to-day effect on longshore transport. Under storm conditions, the structures affect longshore transport, as evidenced by accretional “fillets,” and function as shoreline protection and confinement structures. The rock groins provide shelter, habitat and structure for corals, sponges, lobster, and fish in the area. The preponderance of the evidence demonstrates that the groins authorized by the Permit will have no adverse effect on fish and wildlife resources. NE Jetty The NE Jetty was originally constructed in the early 1960s, likely concurrent with the dredging of the navigational channel. The quality of the aerial photographs of the period make it difficult to tell if the NE Jetty was a loosely-placed rock embankment or a more well-designed and constructed structure. However, the fillet of sand accreted to the north of the Channel demonstrates that the jetty was in existence and functioning as a shore-protection structure. By the 1970s, the NE Jetty had become overwhelmed by longshore sediment transport from the northeast. Sediment overtopped the NE Jetty and filled in the landward reaches of the Channel. At that point, ability of the NE Jetty to perform as a shore protection structure was compromised to the point that it could no longer hold the shoreline out of the basin or the landward portion of the Channel. The Mid-bulkhead became the dominant structural control over the shoreline and started to accrete the shoreline to the northeast. At some time between 1977 and 1981, the Channel was maintenance dredged pursuant to a permit issued by the Department of Environmental Regulation, DEP’s predecessor agency. The NE Jetty appeared on the plans for the maintenance dredging. Thus, the most reasonable inference that can be drawn from the evidence is that the NE Jetty was repaired and restored in conjunction with the approved maintenance dredging. By 1981, the NE Jetty had been restored as the dominant shore protection structure north of the Channel, and a fillet of accreted material had been reestablished. The aerial photographs from that period are not sufficiently distinct to determine the precise size, shape, and configuration of the NE Jetty at that time. However, there is no evidence of additional work having been performed on the NE Jetty between 1981 and 1985. By 1985, the NE Jetty existed in substantially the size, shape, and configuration as it existed at the time of Hurricane Wilma. Between 1981 and the 2005 arrival of Hurricane Wilma, the evidence is convincing that the NE Jetty was holding up the shoreline to the northeast and preventing sediment from filling in the upper reaches of the Channel. Although the evidence suggests that the NE Jetty had, by 2005, begun to show its age, the continuous presence of an accretional fillet demonstrates that it continued to serve its function as a shore-protection structure. Although the NE Jetty suffered damage from Hurricane Wilma, it continued to perform its shoreline protection function. Aerial photographs taken in 2009 and 2011 show a relatively distinct structure with a well-defined accretional fillet. Thus, the greater weight of the evidence demonstrates that, at the time of its repair in May 2011, the NE Jetty was a functional groin. The NE Jetty, as repaired in 2011, is of substantially the same size, shape, and location as the structure depicted in aerial photographs taken in 1985, 2009, and early 2011. Although the elevation of the structure was increased over its pre-repair elevation, the increase was that reasonably necessary to prevent the function of the structure from being compromised by the effects of age and weather. The work performed on the NE Jetty, consisting of new rock laid on top of the existing rock, constituted repair and maintenance of the existing structure. Since 2005, and at the present time, the shoreline north of the NE Jetty has reached a state of equilibrium and stability, and is not expected to change significantly from its current condition. The preponderance of the competent, substantial evidence demonstrates that the effect of the NE Jetty on the shoreline and water resources of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners is minimal and insignificant. The sand and sediment accreted to the north of the NE Jetty since 1981 is in the range of 250 square feet. SW Jetty The aerial photographs from 19647/ demonstrate that some form of structure then existed at the location of the current SW Jetty. The structure is indistinct due to what appears to be sidecast material from a small channel in front of the property to the immediate south of the Property. By 1971, the SW Jetty had become more distinct. From that time forward, the SW Jetty, and its accompanying fillet of accreted material, appears in roughly the size and shape of the structure as it appeared immediately prior to the arrival of Hurricane Wilma. The SW Jetty was heavily impacted by Hurricane Wilma. The overwash from the storm created a substantial runout alongside the SW Jetty, and the post-storm aerials suggest that the jetty boulders were undermined and shifted from their more uniform 2003 appearance. Immediately after Hurricane Wilma, the owner of the Property commenced restoration and repair activities. As part of the activities, the SW Jetty was repaired with the addition of boulders, which were often three feet and every now and then as much as four feet across. The boulders, being irregularly shaped, could not be stacked like Legos®, so the repairs were not neatly within the precise pre-Wilma footprint. However, the repaired SW Jetty was substantially in the length and location as existed prior to Hurricane Wilma, though it may have had a slightly wider cross-section. By 2007, the work on the SW Jetty was complete, and it had assumed its present appearance with the addition of a concrete cap. Its appearance -- i.e. length, width, and location -- in 2007 and 2008 was not dissimilar from its appearance in 2003. As repaired, the SW Jetty effectively constitutes the same structure that it has been since its initial construction. From a coastal engineering perspective, the work that was performed on the SW Jetty, consisting generally of new rock laid on top of the existing rock, constituted repair and maintenance of the existing structure. Dr. Lin testified that between 1974 and 2011, the area to the southwest of the southwest jetty was “about equalized,” though it was “accreting a little bit.” Thus, the effect of the SW Jetty on the shoreline of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners from 1974 to 2011 was minimal and insignificant. Dr. Lin testified that, since 2011, the same area had eroded. The only substantive shoreline change that logically accounts for that subsequent erosion is the Mid-bulkhead extension, which is slated for removal under the terms of the proposed Permit. Petitioner testified that she observed no adverse effects from activities on the Property until after February 2011.8/ Since work on the SW Jetty was complete by no later than 2008, Petitioner’s testimony supports a finding that the SW Jetty has had no measurable effect on the water resources in the vicinity of the properties owned by Applicants and Petitioners. The preponderance of the competent, substantial evidence demonstrates that the effect of the SW Jetty on the shoreline and water resources of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners is minimal and insignificant. Mid-bulkhead The structure of the Mid-bulkhead first appeared as part of the sidecast material from the excavation of the navigation channel in 1964. It coalesced into a defined but smaller and more rudimentary structure in the 1971-1972 time period. At that time, it was acting as the predominant shore protection structure due to the overtopping of the NE Jetty with sediment, which also filled in the landward reaches of the Channel. By 1981, after the maintenance dredging of the Channel, the Mid-bulkhead had assumed substantially the size, shape, and location that it has currently. The Mid-bulkhead has a navigation function of protecting the landward extent of the Channel from the collapse of adjacent sand and sediment, and a shore protection and compartmentalization function. Those functions have been consistent since 1981. The Mid-bulkhead appears to have been subjected to the overwash of sand and sediment from Hurricane Wilma, though it maintained its shape and form. The outline of the Mid-bulkhead appears to be more well-defined after the initial post-Wilma repairs. In any event, the configuration and size of the Mid-bulkhead is substantially the same as it had been since 1981. At some point, the interior section of the Mid- bulkhead was topped with soil that is inconsistent with that naturally occurring in the area. That fill was confined, and brought the Mid-bulkhead to a more even grade with the rock outline, but could have had no measurable effect on the shoreline and water resources of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners. The preponderance of the competent, substantial evidence demonstrates that the effect of the Mid-bulkhead is minimal and insignificant. Channel In 1961, the Department of the Army authorized dredging of a navigation channel at the Property. The approved channel was to be 700 feet long, 30 feet wide, and to a depth of five feet below mean low water. The Florida Trustees of the Internal Improvement Fund issued a letter of no objection. By 1964, the Channel that is the subject of this proceeding had been dredged, though not to the 700-foot length approved. Rather, the Channel was dredged to a length of approximately 290 feet. Much, if not all of the dredge spoil was sidecast, creating a rock structure alongside the Channel. Measurements taken during the course of this proceeding demonstrate that the initial dredging resulted in near vertical side slopes, which shows that the bailing of the bedrock was accomplished to the limits. The width of the Channel is from 28 feet to 32 feet wide, which is within an acceptable tolerance of the 30-foot approved width. In 1976, the then-owner of the Property sought a permit from the DEP’s predecessor, the Department of Environmental Regulation, to maintenance dredge the Channel to a dimension of 290 feet long and 30 feet wide, to a depth of minus 8-feet mean high water, and to construct a new rock jetty to extend 230 feet waterward from the existing terminus of the NE Jetty. Given the mean tide range of 1.7 feet at the Property, the depth of the proposed dredging would have been minus 6.3 feet mean low water, or 1.3 feet deeper than originally approved. The permit drawings depict the existing NE Jetty, the Channel boundary, the outline of the Mid-bulkhead, and the sidecast rock structure alongside the southern side of the Channel. The permit was denied. In 1977, the owner of the property reapplied for a permit to maintenance dredge the Channel to a dimension of 290 feet long and 30 feet wide, and to a depth of minus 4.0 feet below mean low water nearshore to minus 6 feet below mean low water at the waterward end. The proposal to construct an extension of the NE Jetty was deleted. The permit was issued, and a severance fee for the dredged material was paid based on a projected 700 cubic yards of material removed. The permit drawings and photographs depict the existing NE Jetty, the nearshore Channel boundary, and the general outline of the Mid- bulkhead. By 1981, aerial photographs demonstrate that the maintenance dredging of the Channel was complete, the NE Jetty was in place and functioning to protect the shoreline as evidenced by the accretional fillet, and the Mid-bulkhead had assumed its approximate current shape and configuration. Although the Channel has varied in depth over the years since the maintenance dredging and Hurricane Wilma, the greater weight of the evidence, including photographic evidence, indicates that the Channel was well-defined and remained navigable during that period. The Channel is an open-water exposed channel. Water in the Channel mixes due to direct tidal flow and the sheet flow of water due to shear wind stress. As water passes over the Channel, it sets up gyre, which is a mixing process. The open- water exposed Channel is subject to a high degree of mixing, even on normal waveless conditions, because of the wind transport of water and the tidal transport of water. The Channel is not a semi-enclosed basin. A semi- enclosed basin does not receive the direct forcing functions that an open-water channel receives. A semi-enclosed basin has no direct connection to open waters, but is connected to open waters by a narrower opening. Although a semi-enclosed basin exchanges water via every tidal cycle, the flushing process is one of slow mixing, in which a little bit of water is added to and withdrawn from the larger basin through the narrow opening during each tidal cycle. In such a case, a flushing analysis may be necessary to determine how much time and how many tidal cycles it may take to effect a complete exchange of the water in the semi-enclosed basin, and thus, for example, to dilute a pollutant to an acceptable level. A flushing analysis is not needed in this case because the Channel is an open-water, openly-exposed location subject to a high degree of mixing under normal day-to-day tidal processes. There is no greater basin connected by a restricting connection as with a semi-enclosed basin. Rather, the Channel has direct exposure to the tides, along with wind shear stress moving the water. The evidence in this case is substantial and persuasive, because the Channel is highly exposed to the open water and the tides, and a well-mixed and well-flushed aquatic system, that a flushing analysis is neither required nor necessary. Dock The dock made its first obvious appearance in 1981. It appears in a consistent shape and appearance through 2011. Aerial photographs taken in 2012, after the maintenance dredging of the Channel was conducted, show the dock had been removed. At the time of the hearing, the Applicants had installed new pilings and vent boards for the replacement dock, but the decking had not been installed. Work to complete the replacement of the dock was halted due to the pendency of the litigation challenging the structures. The proposed dock is less than 500 square feet. It is proposed for non-commercial, recreational activities. It is the sole dock proposed on the Property. The proposed dock will not impede the flow of water or create a navigational hazard. Boat Ramp Since the issuance of the 2008 approval, the boat ramp site was graded and stabilized in limerock material. The concrete ramp was not completed due to the pendency of the litigation challenging the structures. However, Applicants propose to pave the ramp with concrete. Based on Mr. Clark’s observations during his site visits, the boat ramp is landward of the mean high waterline depicted on the survey. The preponderance of the evidence demonstrates that the proposed boat ramp will provide access to the Channel, which provides a minimum navigational access of two feet below mean low water to the ramp. Applicants have agreed to install depth indicators at the ramp to identify the controlling depths of the navigational access. The work on the ramp involves no seagrass beds or coral communities. The ramp as proposed will require no more than 100 cubic yards of dredging. The total width of the ramp is to be 20 feet and the ramp surface will be no wider than 12 feet. Beach Area The area between the SW Jetty and the Mid-bulkhead is an accreted beach-type area that has been confined and protected by the Mid-bulkhead and the SW Jetty. The shoreline landward of the mean high water line, from the dry beach and to the upland, is somewhat steeper than adjacent unprotected shorelines, which is indicative of the grooming of the upper beach sediment and the stability of the shoreline between the Mid-bulkhead and the SW Jetty. As a result of the Hurricane Wilma storm surge, a substantial amount of sediment was swept across the Property and into the Atlantic waters. The beach area was inundated with sand and sediment from the overwash, which appears to have moved the shoreline well waterward of its previous position. Along the northern side of the SW Jetty, a substantial channelized gully was created. The configuration of the shoreline post-Wilma suggests that efforts were made by the then-owner of the Property to fill in the gully on the northern side of the SW Jetty, and to groom and restore the shoreline by redistributing sand and sediment on the Property. It is typical, and allowable under DEP emergency final orders, for affected property owners to redistribute overwashed deposits and place them back within the beach system. In that regard, the DEP encourages the redistribution of clean beach sand back onto the beach. The then-owners of the Property were not alone in taking steps to address the effects of Hurricane Wilma on their adjacent shorelines. The photographic evidence demonstrates that Petitioners engaged in similar restorative activities, which included bringing in material purchased from a contractor to fill in a gully created on their property by the overwash. Observation of representative soil samples from the beach area demonstrate that the soils are consistent with those in the upper beach areas found throughout the area. The only areas of inconsistent soils were found in the interior of the rock structure of the Mid-bulkhead, which contained a four to six-inch layer of soil with a different consistency and darker brown color, and small area of similar soil directly adjacent thereto and well above the mean high water line. The greater weight of the competent, substantial, and credible evidence demonstrates that there was no substantial amount of “fill” from off-site placed on or adjacent to the beach area. Rather, the nature, appearance, and composition of the soils suggests that the temporary increase in the size of the beach area after Hurricane Wilma was the result of grooming and redistribution of sand and sediment pushed onto the Property and into the nearshore waters by the Hurricane Wilma storm surge. In the years since Hurricane Wilma, the influence of normal tidal and weather-driven events has returned the beach area between the mid-bulkhead and the SW jetty to roughly the configuration that existed prior to the passage of Wilma, though it remains somewhat waterward of its pre-Wilma location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the February 20, 2013, proposed Permit, as conditioned by Applicants’ December 12, 2013, Proposed Changes to the Pending Agency Action. DONE AND ENTERED this 25th day of July, 2014, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 25th day of July, 2014.
