Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered by the Commission dismissing the Department's petition for the reasons set forth above. DONE AND ENTERED this day of September, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of September, 1997. COPIES FURNISHED: Anne Longman, Esquire Lewis, Longman and Walker, P.A. 125 South Gadsden Street, Suite 300 Tallahassee, Florida 32302 Steven H. Parton, Esquire Dennis Silverman, Esquire Division of Legal Services 625 Larson Building Tallahassee, Florida 32399-0333 Robert S. Cohen, Esquire Pennington, Moore, Wilkinson and Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Elsie Crowell, Chairperson Commission on Hurricane Loss Projection Methodology Larson Building, Fifth Floor Tallahassee, Florida 32399-0300
The Issue The issues are whether Florida Administrative Code Rules 69O-170.017 and 69O-170.0155 and incorporated forms OIR-B1-1699 (Form 1699) and OIR-B1-1655 (Form 1655) are invalid exercises of delegated legislative authority, pursuant to section 120.56(3), Florida Statutes, on the grounds that they enlarge, modify, or contravene the specific provisions of the law implemented or that they are arbitrary or capricious, as prohibited by section 120.52(8)(c) and (e), respectively.
Findings Of Fact Rules, Forms, and Relevant Law Implemented Citing section 627.0629, Florida Statutes, among other statutes, as the law implemented, Florida Administrative Code Rule 69O-170.0155(k) incorporates by reference Form 1655. Form 1655 advises homeowners of the availability of discounts applicable to the wind portion of their homeowners' insurance premium for various fixtures and construction techniques that mitigate wind loss. As relevant to this case, Form 1655 notifies a homeowner of a discount for "shutters." Although this discount implicitly applies to windows and possibly doors, its levels of protection--"none," "intermediate," and "hurricane"--indicate, for the reasons discussed below, that the discount is available only for a fixture--i.e., shutters--that increases the impact resistivity, not wind resistivity, of windows and doors.1/ Impact resistivity and wind resistivity are defined in the first paragraph of the next part of this Final Order. Form 1655 notifies a homeowner that she may qualify for multiple discounts, if her home is mitigated with multiple fixtures or construction techniques listed on the form. However, Form 1655 warns that discounts are not calculated cumulatively: "[w]hen one discount is applied, other discounts are reduced until you reach your maximum discount." Citing section 627.0629(1), among other statutes, as the law implemented, Florida Administrative Code Rule 69O-170.017 incorporates by reference Form 1699. Rule 69O-170.017 requires insurers to base their rates on the discounts contained in Form 1699 "without any modification unless [the insurer's rates] are supported by detail[ed] alternate studies where all assumptions are available to [OIR] for review." Form 1699 consists of two pages. On the first page is a matrix of wind-premium discounts for various combinations of mitigative fixtures and construction techniques applicable to "existing construction."2/ All references in this Final Order to Form 1699 are to the first page of the form. Containing 12 columns3/ and 72 rows,4/ Form 1699 identifies discounts under eight columns5/ and along 72 rows, for a total of 576 discounts.6/ The column labeled "opening protection" has three levels: "none," "Basic--Windows or All," and "Hurricane--Windows or All." Form 1699 lacks a column or row for the strength of windows, doors, and skylights. Discounts for fixtures and construction techniques that increase opening protection and window, door, and skylight strength are required by section 627.0629(1): It is the intent of the Legislature that insurers provide savings to consumers who install or implement windstorm damage mitigation techniques, alterations, or solutions to their properties to prevent windstorm losses. A rate filing for residential property insurance must include actuarially reasonable discounts . . . for properties on which fixtures or construction techniques demonstrated to reduce the amount of loss in a windstorm have been installed or implemented. The fixtures or construction techniques must include, but are not limited to, fixtures or construction techniques that enhance roof strength, roof covering performance, roof-to-wall strength, wall-to-floor-to-foundation strength, opening protection, and window, door, and skylight strength (emphasis added). [D]iscounts for fixtures and construction techniques that meet the minimum requirements of the Florida Building Code must be included in the rate filing. [OIR] shall determine the discounts . . . that reflect the full actuarial value of such revaluation, which may be used by insurers in rate filings. As to the two rules and two forms at issue in this case, OIR initiated rulemaking and made recommendations to Respondent Financial Services Commission, which, as noted in the Conclusions of Law, is the agency authorized to adopt these rules. Basic Principles and Overview Hurricane winds damage structures by wind pressure and wind-borne debris. Wind-borne debris, which is also known as missiles, consists of such objects as roof tiles or tree branches that are transported by the wind into roofs, exterior walls, windows, and doors, sometimes penetrating these building components. The ability of a building or building component to resist wind pressure is a measure of its wind resistivity, and the ability of a building or building component to resist wind- borne debris is a measure of its impact resistivity. Both wind and wind-borne debris may damage the roof, exterior walls, windows, doors, and--rarely, in the case of hurricanes--foundations.7/ These five components form the building envelope. Once the building envelope is breached, rainwater may enter and damage the interior of the building; more dramatically, hurricane-force winds may pressurize the interior of the building, blowing out windows, doors, or exterior walls or blowing off the roof.8/ The identification of premium discounts is the culmination of a complicated process. Discounts are driven by projections of damage9/ and economic loss.10/ Damage and economic loss are driven by the interaction of wind pressure and wind-borne debris from simulated hurricanes with structures that are modeled with various wind resistive and impact resistive features. At every step of this overall process, difficult calculations are required, and some of the results may defy a layperson's intuitive expectations.11/ The data and analysis on which OIR relied in identifying the discounts in Form 1699 were derived from a study reported in Applied Research Associates, Inc. (ARA), Development of Loss Relativities for Wind Resistive Features of Residential Structures (Version 2.2 March 2002) (2002 ARA Report). Another important source of data is a followup study reported in ARA, Florida Residential Wind Loss Mitigation Study (Version 1.11 October 2008) (2008 ARA Report), although OIR has not revised the discounts in Form 1699 based on the data and analysis contained in the 2008 ARA Report. Openings in structures are framed-out sections of a wall or roof--most commonly for windows and doors, including garage doors. The protection of openings helps preserve the integrity of the building envelope for all structures relevant to this case.12/ Hurricane losses are governed by the performance of the building envelope,13/ especially once the winds exceed 120 mph.14/ All components--i.e., windows, skylights, and doors, including garage doors--installed in openings are glazed or nonglazed. A component is glazed if it contains any glass or plastic. All windows and skylights are glazed, as are doors with glass or plastic windows. A component is nonglazed if it contains no glass or plastic. This Final Order refers to glazed components in openings as windows and generally refers to nonglazed components in openings, including garage doors, as doors. All references to garage doors are to garage doors without windows that are attached to the main dwelling and under a common roof with the main dwelling. Interior pressurization of a structure occurs only when a hole in the building envelope reaches a critical size. As discussed below, most windows and all doors are of sufficient size that, if blown out or sucked in by wind pressure, the elimination of the entire unit creates a large enough hole for interior pressurization to take place. If a window or door is penetrated by a missile, though, the hole corresponding in size to the face of the missile impacting the building component may not be large enough to allow interior pressurization to take place. Wind-borne debris is a greater concern for windows that are not impact resistant because, after a window shatters, any hole typically will be the size of the unit of glazing struck by the missile. This case involves residential structures. As noted above,15/ Form 1699 divides homes into two categories: those that were initially permitted prior to the effective date of the FBC of 200116/ (existing) and those that were initially permitted under the FBC (new). As provided by section 627.0629(1), homeowners' insurers are required to provide a discount on the wind portion of an annual homeowners' insurance premium for the installation or implementation of the fixtures and construction techniques listed in the statute. Insurers may use the discounts identified in Form 1699, or they may calculate their own discounts, although, if they do so, rule 69O-170.017 requires the insurers to base their discounts on appropriate studies and data. All but two homeowners' insurers17/ have set their rates using the discounts in Form 1699. Due to the language, "Windows or All," Form 1699, on its face, does not provide a discount for fixtures or construction techniques applicable to doors, only windows. In other words, Form 1699 provides the same discount for enhanced windows as it does for enhanced windows and enhanced doors and provides no discounts for enhanced doors absent enhanced windows. Not evident on the face of Form 1699 is that the form provides discounts only for enhancements to impact resistivity, not wind resistivity. The dispute in this case arose because Petitioner manufactures a fixture to increase the wind resistivity, but not impact resistivity, of existing garage doors. "Opening protection" has two meanings. In the broader and more natural sense, "opening protection" means that all openings--i.e., windows and doors--are protected against both forms of wind peril--i.e., wind pressure and wind-borne debris. At times, the broader definition of opening protection has been used by OIR18/ and ARA.19/ More frequently, though, opening protection is limited to protection from wind-borne debris only and is thus a measure of impact resistivity.20/ Adopting this more restrictive definition, section 627.0629(1) distinguishes between opening protection, on the one hand, and window, door, and skylight strength, on the other hand. This Final Order therefore uses opening protection in its more restricted sense--i.e., the protection of windows and doors from wind-borne debris only. Many of the findings in this Final Order are to clarify the opacity that has attached to the use of opening protection by ARA and OIR; to reestablish the statutory distinction between opening protection and window, door, and skylight strength; and to assess the consequence of the omission from Form 1699 of any discounts for window, door, and skylight strength. Resolution of these issues requires persistent differentiation among the losses that may arise from the damage that wind may cause to doors, the damage that wind may cause to windows, the damage that wind-borne debris may cause to doors, and the damage that wind-borne debris may cause to windows. Generally, windows fail due to impact by wind-borne debris more often than wind pressure,21/ but doors, especially garage doors, fail almost exclusively from wind pressure, not wind-borne debris.22/ Resolution of these issues requires persistent differentiation between wind resistivity and impact resistivity- i.e., the ability to withstand damage, respectively, from wind pressure and wind-borne debris. Wind pressure testing subjects a building component to uniform static wind pressure to determine if the component can withstand a specified wind load. Wind-borne debris testing subjects a building component to two tests: first, an impact from a missile of a specified weight traveling at a specified speed and, second, cyclic pressurization to determine if, after impact, the component can withstand short bursts of specified wind loads. As used in this Final Order, impact testing includes both of these tests. Lastly, as is implied by the language of section 627.0629(1), "strong" and "weak" should not be applied to describe the impact resistivity of windows and doors--i.e., opening protection. The statute speaks of enhancing the strength of four features, including windows, doors, and skylights, but only of enhancing opening protection. The failure of the statute's third sentence to modify "opening protection" with "strength" is intentional and reinforces the distinction between opening protection, which is measured by impact resistivity, and the remaining mitigative features, including window and door strength, which are measured by wind resistivity. As discussed below, the FBC maintains the same distinction by defining "strong" and "weak" in terms of the relative ability of a building component to support a factored load.23/ Therefore, a "weak" or "strong" window or door refers to the resistivity of the window or door to uniform static wind pressure and possibly cyclic pressurization, but not to missile impacts. For these reasons, this Final Order refers to a "strong" or "weak" building or building component or "strengthening" a building or building component in terms of the ability to resist wind pressure, including cyclic pressurization, but not missile impact. Petitioner and its Secure Door® Bracing System A limited liability company located in Plantation, Florida, Petitioner manufactures and distributes the Secure Door® residential garage door bracing system. Invented in the mid 1990s and marketed since the late 1990s, the Secure Door® bracing system consists of telescoping aluminum struts that can extend to eight feet and are anchored in the header above the garage door and the floor below the garage door. Each strut attaches to the sectional hinges of a garage door. The width of the garage door dictates the number of struts in the bracing system. A single-car garage, which is eight to nine feet wide, requires only one strut. A two-car garage, which is 16 feet wide, requires two struts. Garage doors are typically held in place by two tracks at either end that guide the doors when raised or lowered. Garage doors in existing construction typically offer little resistance to wind pressure. As little as eight pounds per square foot of wind pressure is sufficient to force such doors to bow and pull off their tracks. Failed garage doors obviously leave a large opening unprotected from the wind--an especially dangerous situation when high winds rush into garages and pressurize the interior of the house. The Secure Door® bracing system is effective. It strengthens weak garage doors. A two-strut Secure Door® bracing system raises the wind resistivity of a garage door to about 31 pounds per square foot, and a three-strut Secure Door® bracing system raises the wind resistivity of a garage door to about 50 pounds per square foot. The Secure Door® bracing system is inexpensive. Online, a one-strut system sells for about $150, and a two-strut system sells for double this amount. Petitioner's bracing system is easy enough for many homeowners to install themselves, so any installation costs are small. The installed cost of Petitioner's bracing system is thus far less than the typical cost of $850 to $1500 for a new one-car or two-car garage door that complies with the wind resistivity requirements of the FBC. An approved independent testing laboratory has certified that garage doors fitted with the Secure Door® bracing system meet the requirements of the 2010 FBC for wind resistivity, if installed onto a nonglazed, sectional garage door constructed of at least 25-gauge steel. The Secure Door® bracing system is the sole product cited as having FBC approval for strengthening garage doors in the Hurricane Retrofit Guide published by the Florida Division of Emergency Management.24/ Petitioner's product has achieve a unique prominence in the hardening or fortification after-market, as reflected, in part, by the fact that over 100 Lowe's outlets in Florida stock the Secure Door® bracing system. From 2005-11, Petitioner has sold to Florida purchasers, directly and through Lowes, from 760 to 10,363 units annually for total revenues of about $3.7 million or about $500,000 annually. Petitioner secured about 75% of these sales in 2006-08--after the period of numerous hurricanes during 2004-05. Given the effectiveness, low cost, and availability of Petitioner's product, as well as the abundance of existing Florida homes with weak garage doors, a homeowners' insurance discount for the installation of a Secure Door® bracing system would likely increase sales significantly. Petitioner filed a petition to initiate rulemaking to provide a premium discount for homeowners installing a Secure Door® bracing system. However, on May 4, 2012, OIR denied the petition on the ground that Petitioner lacked standing. Hurricane Andrew The landfall of Hurricane Andrew 20 years ago ultimately prompted two major changes in Florida's construction and homeowners' insurance industries. Future construction statewide would be governed by the FBC, and future rate filings of homeowners' insurers would provide an elaborate set of discounts for mitigative fixtures and construction techniques. These two legislative achievements marked the "grand bargain" struck between the homeowners' insurance and homebuilding industries.25/ Four months after Hurricane Andrew, FEMA published its "observations, recommendations, and technical guidance" in a report entitled Building Performance: Hurricane Andrew in Florida (December 21, 1992) (FEMA Andrew Report). According to the FEMA Andrew Report, Hurricane Andrew was, at landfall, a category-four storm that produced high winds and high storm surge. Although the flood damage was "minimal," probably due to the compactness and speed of the storm after landfall," the wind damage was "widespread."26/ Even so, only "in some areas" did Hurricane Andrew's land-based wind speeds exceed the design wind speeds in the South Florida Building Code, so "properly designed and constructed buildings should have experienced fewer storm- related damages when factors of safety required by the [South Florida Building] Code [SFBC] are taken into consideration."27/ In other words, Hurricane Andrew demonstrated the inadequacy of the standards in existing building codes to protect against even the wind speeds assumed in these codes. Focusing on particular causes of damage, the FEMA Andrew Report states that widespread catastrophic building failure was primarily due to "negative pressure and/or induced internal pressure overloading the building envelope."28/ The FEMA Andrew Report warns: A breach of a building's envelope (i.e., the system by which the building resists wind penetration) is particularly hazardous during wind storms. [A]dditional direct internal wind pressures combine with suction pressures on exterior faces, causing partial or complete blowouts of major structural systems such as walls and roofs. Double-car garage doors and entry doors especially should be held secure during wind storms.[29/] Reinforcing the relationship between major structural damage and failed windows and doors, the FEMA Andrew Report finds: The breaching of the building envelope by failure of openings (e.g., doors, windows) due to wind or debris impact was a significant factor in the damage of many buildings. This allowed an uncontrolled buildup of internal air pressure that resulted in further deterioration of the building's integrity.[30/] Focusing on garage doors, the FEMA Andrew Report describes damage from wind pressure, but not wind-borne debris: The failure of garage doors was determined to have promoted a great deal of damage to buildings. . . . [G]arage doors failed when the door deflection exceeded the amount allowed for in the manufacturer's design. . . . Loss of the doors resulted in an envelope breach and a sudden increase in internal pressures to the buildings.[31/] FEMA's analysis of the failure of entry doors likewise focuses on damage from wind pressure to the exclusion of damage from wind-borne debris.32/ By contrast, wind pressure and wind-borne debris both endanger windows and large sliding glass doors. The FEMA Andrew Report documents "failure from high wind pressures and debris impact," adding that "glazing left without storm protection was especially prone to penetration by airborne materials and failure due to the wind loads."33/ The relevant conclusions of the FEMA Andrew Report are: a) preserving the integrity of the building envelope limits damages and losses; b) protecting windows and doors preserves the integrity of the building envelope; c) wind and wind-borne debris damage windows and d) wind, but generally not wind-borne debris, damages doors. Response to Hurricane Andrew General The Legislature responded to Hurricane Andrew on multiple fronts.34/ In 1993, the Legislature enacted section 627.0629, Florida Statutes.35/ The narrow scope of the original statute is evidenced by the fact that it was then known as the "shutter discount rule."36/ In 1997, the state of Florida launched the Residential Construction Mitigation Program, which sponsored detailed inspections of over 2000 houses in selected coastal counties between 1998-2000. Through the program, the state collected valuable data about Florida's housing stock prior to the 2001 FBC in terms of construction features, mitigation fixtures and construction techniques, and expected loss-mitigation benefits.37/ In 1998-99, the Florida Windstorm Underwriting Association developed a plan for classifying buildings based on wind-risk features. Previously, the insurance industry had classified buildings based exclusively on fire-risk features, which were not necessarily the same as wind-risk features. Examples of wind-risk rating factors included roof shape (hip versus gable), method of attaching roof sheathing, presence or absence of a garage, and extent of protecting openings in the frame. As ARA described it, the resulting "rating factors . . . are synergistic amongst multiple features and not simply additive . . . because each element of the building envelope is vulnerable and, hence, combinations of mitigation items interact nonlinearly."38/ In 2000, the Legislature enacted important amendments to section 627.0629(1), rendering the statute substantially in its present form.39/ Florida Building Code The uneven performance of SFBC-compliant homes in Hurricane Andrew demonstrated the need to strengthen and improve what, up to that time, had been regarded as the "best hurricane code" in the United States.40/ After the adoption in 1993 of wide-scale requirements for improved roof systems and in 1994 of major structural and building component upgrades,41/ by 1997, Florida essentially operated under the 1997 Standard Building Code (SBC) with Florida amendments and the SFBC, according to FEMA in a report entitled Hurricane Charley in Florida (FEMA Charley Report).42/ These post-Andrew building code revisions culminated in the legislative adoption of the 2001 FBC.43/ Developed and maintained by the Florida Building Commission, the 2001 FBC generally superseded all local building codes for new construction permitted on or after March 1, 2002.44/ For ease of reference, this Final Order generally cites from the most recently adopted revision of the FBC, the 2010 FBC. Addressing wind resistivity, the 2010 FBC provides: "Buildings, structures and parts thereof shall be designed to withstand the minimum wind loads prescribed herein."45/ Winds are determined in accordance with ASCE 7.46/ These are the provisions that subject buildings and their components to wind loads and effectively subject buildings and their components to wind resistivity standards. The 2010 FBC includes a wind contour map for the state of Florida, which, for single-family residences, depicts ultimate design wind speeds from 150-180 mph in Broward, Dade, and Monroe counties down to 115-120 mph in the central part of the Panhandle, including Leon County.47/ In "many applications," the design wind pressure in the 2001 FBC--and, later, the 2010 FBC--was higher than the design wind pressures specified in previous building codes.48/ The 2010 FBC provides a table devoted exclusively for determining wind loads for garage doors and rolling doors.49/ The wind loads are based on the area of the door and the pitch of the roof, but the maximum positive or negative wind load for 170 mph winds is about 30 pounds per square foot, 150 mph winds is about 22 pounds per square foot, and 130 mph winds is about 18 pounds per square foot.50/ These design wind loads, when applied to a 16' x 7' garage door, mean that the door must be able to support the equivalent of the force produced by placing the door over a large hole and parking a small car on it. The FBC divides Florida into three regions51/: the High-Velocity Hurricane Zone (HVHZ), which is all of Dade and Broward counties52/; the Wind-Borne Debris Region (WBDR), which is most of coastal Florida53/; and the remainder of Florida.54/ In addition to the wind resistivities described in the preceding paragraphs, new construction must also meet impact resistivities. For new construction in the WBDR, windows must be impact resistant.55/ For new construction in the HVHZ, windows and doors must be impact resistant.56/ Because of the dual requirements for doors in the HVHZ and, presumably, the unlikelihood that, rather than merely replace the existing garage door, a homeowner would retrofit her garage door with Petitioner's product and, say, shutters to protect against wind- borne debris, Petitioner does not market its device in Dade and Broward counties. 2002 ARA Report Later in the same month that the 2001 FBC went into effect, ARA published the 2002 ARA Report. The purpose of the 2002 ARA Report was to estimate the reduction in homeowners' insurance hurricane losses from the installation or implementation of the fixtures and construction techniques identified in section 627.0629 in existing single-family residences and from the construction of new, FBC-compliant single-family residences.57/ The introduction to the 2002 ARA Report quickly reveals a couple of problems. ARA acknowledged that the scope of its study had to cover at least the wind resistive features identified in section 627.0629(1), but: a) ARA collapsed two statutory features--opening protection and window, door, and skylight strength--into a single feature that it labeled "opening protection of windows, doors, and skylights"58/ and b) ARA described all five features as "wind resistive,"59/ even though, as discussed below, ARA studied windows and doors in terms of their impact resistivity, not wind resistivity. Notwithstanding these problems, the modeling that ARA undertook for the 2002 ARA Report represents a remarkable achievement. Previously, catastrophe modeling, at least for hurricanes, was based exclusively on the analysis of insurance loss data.60/ Using its HurLoss 2.0® hurricane-loss model (HurLoss), whose components comprise an overall climatological model and a hurricane wind field model,61/ ARA projected insured losses based on principles of engineering, climate science, and meteorology, including the analysis of the interaction of a building with wind,62/ as well as the analysis of insurance loss data, which was also used to validate the modeling.63/ In general, for existing construction, ARA acquired descriptive data of the housing stock.64/ ARA conceptualized six single-family residences,65/ distributed them to 31 distinct points within mostly coastal Florida (with four of these points at locations subject to the maximum design wind speed under the 2001 FBC of 150 mph),66/ and analyzed each residence--in terms of structural damage and loss to the dwelling, contents, and additional living expenses, but not other structures67/--with specific sets of mitigative fixtures and construction techniques.68/ Using HurLoss, ARA subjected each of these residences to 300,000 years' worth of hurricanes projected to strike each of the 31 locations.69/ Through this process, ARA projected, by residence, wind loads, wind-borne debris impacts, building component resistance values, damage states, economic losses resulting from the predicted damage,70/ and, by the application of principles of insurance, including the assumption of a 2% deductible, insured losses. 71/ Ultimately, ARA calculated the average annual loss for a specifically configured residence by taking the residence's total losses over the 300,000 years of simulated hurricanes and dividing the total losses by 300,000. Dividing the resulting average annual loss by the value of the home produced a loss cost. ARA introduced the notion of relativity by comparing the loss cost of a specifically configured residence to the loss cost of the typical Florida residence.72/ A ratio below 1.00 for a specifically configured residence means that the insured losses for that home are projected to be relatively low, and a ratio above 1.0 means that the insured losses are projected to be relatively high. To define the relevant configuration of an existing residence, the 2002 ARA Report identifies seven primary rating factors73/ and four secondary rating factors.74/ Compared to the statutory list of six mitigative features, ARA added a couple of features--terrain and roof shape--and omitted only one--window, door, and skylight strength. The levels of opening protection are "none," "basic," or "hurricane." "Basic" protects against the impact of a 4.5- pound missile, and "hurricane" protects against the impact of a 9-pound missile.75/ Although not explicit, the primary rating factor for opening protection is limited to windows. The secondary rating factor for opening protection extends to doors, provided windows are also protected against wind-borne debris-- i.e., windows and doors.76/ Using the seven primary rating factors, the 2002 ARA Report generates two tables of loss relativities--one for open terrain and one for terrain that is not open.77/ By using the correct table and identifying the primary rating factors, one can calculate an existing residence's loss relativity, which may require further adjustment if any secondary rating factors apply. As noted above, the primary rating factor for opening protection is limited in two important respects: a) it covers windows only78/ and b) it measures impact resistivity, not wind resistivity.79/ Extending opening protection to doors, the secondary impact factor also measures impact resistivity, not wind resistivity.80/ Given the omission of window and door strength from its loss relativity study, ARA therefore assessed only those fixtures and construction techniques that increase the impact resistivity of windows and doors. Ultimately, ARA determined that the secondary rating factor for opening protection produced a negligible effect. The adjustment for the secondary rating factor for protecting windows and doors from wind-borne debris multiplies by .98 the loss relativity ratio derived from the primary rating factor for protecting only windows from wind-borne debris.81/ The effect of the findings in the preceding two paragraphs was that ARA transmitted to OIR no loss relativities on which OIR could calculate discounts for fixtures and construction techniques that increased the wind resistivity of windows or doors and negligible loss relativities, relative to those for fixtures and construction techniques that increased the impact resistivity of windows, on which OIR could calculate discounts for fixtures and construction techniques that increased the impact resistivity of doors. Although groundbreaking, the modeling in the 2002 ARA Report was not definitive for several reasons, as ARA itself acknowledged: The estimation of losses for buildings with specific engineering details is an emerging technology and has many limitations. . . . The HURLOSS computed relativities have been compressed using a judgment factor. The resulting loss relativities, while reasonable estimates at this time, are likely to evolve with more data and further model improvements. . . . the scope of the project was extremely complex and the schedule limited. Many pieces of the work were done in parallel and many simplifications were needed to produce a final product. There is clearly room for refinement and improvement and a strong need for more data.[82/] One of the "many simplifications"--unwitting or intended--was to reduce the six statutory mitigative features to five. An interesting question is whether this simplification was "needed to produce a final product."83/ The ARA engineer called by Respondents tried to justify ARA's omission of window, door, and skylight strength from its 2002 loss relativities study. The engineer testified that impact testing, which includes cyclic pressurization, includes wind pressure testing and implied that impact resistivity therefore subsumes wind resistivity.84/ This testimony was misleading and unworthy of any weight, although, in fairness to the engineer, this testimony may have been based on a statement that appeared, once, in the 2008 ARA Report.85/ Among the flaws in this argument is that ARA's recognition of enhanced wind resistivities only in the form of enhanced impact resistivities ignores measures that increase wind resistivity, but have no effect on impact resistivity. An example of such a measure would be reinforcing the attachment of a frame of a door or window to the frame of the house; the result would be to increase the door or window's wind resistivity, but not impact resistivity. If the only measure of increased wind resistivity is through increased impact resistivity, measures such as reinforcing frames, although effective mitigation, would never generate reduced loss relativities or discounts. Of course, a more pertinent example of a measure that increases wind resistivity, but not impact resistivity, is Petitioner's product. ARA's recognition of enhanced wind resistivities only through enhanced impact resistivities also ignores the distinction between opening protection and window, door, and skylight strength in section 627.0629(1) and the distinction between impact resistance and wind resistance in the FBC. By including opening protection and window, door, and skylight strength among the six required mitigative features, section 627.0629(1) ensures that all components installed in all framed openings--i.e., windows and doors--will be assessed in terms of both relevant perils--i.e., wind pressure and wind-borne debris. By claiming that impact resistivity subsumes wind resistivity, the ARA engineer destroys the logic of the statutory scheme and renders meaningless the "window, door, and skylight strength" clause. The ARA engineer's argument also fails to harmonize with the provisions of the FBC calling for the separate assessments of opening protection and window, door, and skylight strength. For homes in the HVHZ, the 2010 FBC requires that doors and windows, among other building components, undergo testing for wind pressure,86/ impact,87/ and cyclic pressurization.88/ Testing Application Standard (TAS) 202-94 specifies the protocols for wind pressure testing of building components, and TAS 203-94 specifies a different set of protocols for cyclic pressurization testing, after impact testing, of building components.89/ If the cyclic pressurization test within the impact test subsumed the wind pressure test, the FBC would not maintain these distinctions. In his deposition, the ARA engineer never said that cyclic pressurization testing subsumed wind pressure testing. At hearing, the ARA engineer seemed unwilling to stake his testimony entirely on this flawed argument. He later testified that ARA failed to calculate loss relativities for the wind resistivity of existing doors and strengthened doors for reasons of convenience, but justified this failure by claiming that ARA's response to the invitation to negotiate had described the scope of the work that it would undertake.90/ The ARA engineer estimated that the loss relativity of a wind resistive window would fall between the loss relativities of the first two levels of impact resistivity for a window: none and basic.91/ The engineer did not specify a strength for the enhanced window. Even if he had, it is entirely unclear how the ARA engineer determined that the loss relativity of a window with a strength of, say, 45 pounds per square foot92/ would produce a loss resistivity somewhere between--if such a point can even be determined--the loss relativities of a window incapable of withstanding the impact of a missile and a window capable of withstanding the impact of a 4.5-pound missile. The ARA engineer estimated that the loss relativity of a wind resistive door would fall between the loss relativities of unspecified levels of protection, in terms of impact resistivity, for windows and windows and doors.93/ Like the estimate for a wind resistive window, this estimate for a wind resistive door is rejected as speculation. The derivation in the preceding paragraph of a loss relativity for wind resistance from a loss relativity for impact resistance at least both involved windows, which are vulnerable to wind and wind-borne debris. But the derivation of a loss relativity for wind resistance from a loss relativity for impact resistance involving doors seems dubious on another ground: doors are not particularly vulnerable to wind-borne debris.94/ Both unpersuasive attempts to peg loss relativities for wind resistance to loss relativities for impact resistance attempt to mitigate ARA's failure to conduct the necessary study and produce loss relativities for windows and doors for wind resistivity. Given the synergistic interdependency of mitigative features when calculating loss relativities, as discussed below, these estimates of wind resistivities by the ARA engineer fail to persuade. The Administrative Law Judge gives far more weight, though, to the admission by the ARA engineer that ARA should "absolutely" conduct another study to "include wind pressures" for doors, windows, and vents.95/ Dr. Lawrence Twisdale, an ARA principal and author of the 2002 ARA Report and 2008 ARA Report, never suggested that cyclic pressurization testing subsumes wind pressure testing or that loss relativities for wind resistivity could be quickly derived from loss relativities for impact resistivity. During a brief telephone conversation with Petitioner's principal in 2009, Dr. Twisdale instead admitted the obvious--i.e., ARA had not studied garage doors that much and its studies had focused on windows. Providing loss relativities for the wind resistivity or strength of windows and doors would be inconvenient. Among other things, ARA would face the difficult tasks of reviewing and perhaps collecting data96/ and exercising professional judgment as to the wind resistivities of existing windows and doors whose strength would be enhanced by mitigative fixtures and construction techniques that would render them more wind resistive, perhaps to FBC standards. But these were the tasks that ARA performed as to other mitigative features and were the tasks that the procuring agency97/ intended to impose on ARA. Adding one or more rating factors for window and door strength would be burdensome. As ARA explained its decision not to add a separate rating factor for garage doors (although apparently only for their impact resistivity): "This approach simplifies the application of the relativities and the numbers of combinations required to be considered."98/ But simplicity, a virtue in 2002, is cast in a different light in the 2008 ARA Report: While the details of the proper interpretation and application of rate differentials contained herein may be viewed by some as overly complex, the procedures reflect both the inherent variations in construction techniques as well as the engineering details embedded in the FBC. Over simplification of the measures of loss reduction (e.g., by simplifying the results to smaller tables with fewer features) also seems counter to the state's investments in improving the building code as well as in promoting public awareness of mitigation techniques. Eliminating features for the purpose of achieving simplicity would also result in lost opportunities for both awareness and mitigation of those features (including code-plus construction). [A] 1% reduction in average annual residential loss in Florida would amount to an annual statewide loss reduction savings of about $50 million in 2008 dollars. Each 1% loss reduction that we can wring out of new construction (through FBC improvements) and existing construction (through mitigation) will result in long-term exponential reductions in statewide losses.[99/] In any event, the failure of ARA to generate loss relativities for fixtures and construction techniques that increase the wind resistivities of windows and doors left OIR with no means to calculate the discounts for such fixtures and construction techniques. The testimony of the ARA engineer also addressed ARA's calculation of the .98 loss relativity ratio for increasing the impact resistivity of doors. The ARA engineer testified that, in part, ARA determined this relatively small difference in loss relativities by comparing FBC-compliant garage doors to strong, but not FBC-compliant, garage doors with wind resistivities of about 20 pounds per square foot, instead of to weak garage doors with wind resistivities of about 10 pounds per square foot.100/ Ignoring for a moment the inherent problems of mixing wind and impact resistivities, by assuming that existing garage doors were relatively strong, ARA dampened the result of any fixture or construction technique that further increased the impact resistivity of such garage doors. If ARA had chosen a garage door with reduced impact resistance, the .98 loss relativity ratio would have been lower and perhaps not amenable to characterization as negligible. In any event, the failure of ARA to produce an accurate loss relativity for fixtures and construction techniques that increase the impact resistivity of doors left OIR with no means to calculate an accurate discount for such fixtures and construction techniques. Due to the flaws detailed above, Form 1699 lacks discounts for fixtures and construction techniques that enhance the wind resistivity of windows and doors and understates the discount for fixtures and construction techniques that enhance the impact resistivity of doors. But, due to the interdependency of loss relativities and discounts, these omissions and understatement also raise the real possibility of distortion among the other loss relativities and discounts. This interdependency is suggested by the above-cited statement in Form 1655: "[w]hen one discount is applied, other discounts are reduced until you reach your maximum discount." Discounts are not merely added until the maximum is reached. A second discount necessitates the reduction of the first discount, and so on, until the maximum discount is reached. But the interdependency is more complicated, at least when calculating damage states and loss relativities. As noted above, at least since the late 1990s, engineers have known that wind-risk factors, such a roof-to-wall attachment, opening protection, and window, door, and skylight strength operate synergistically, and these nonlinear features cannot merely be added because they combine nonlinearly.101/ In calculating loss reductions, ARA illustrates the nonadditive property of mitigative features with a simple example in the 2008 ARA Report. If a hip roof reduces losses by 20% when compared to a gable roof, an FBC roof reduces losses by 30% when compared to a nonFBC roof, shutters reduce losses by 40% when compared to windows without shutters (or other form of enhanced impact resistivity), and a one-story residence reduces losses by 30% when compared to a two-story residence, the total effect of these several mitigative fixtures and construction techniques cannot be a 120% reduction in losses.102/ Obviously, "the effects of mitigating one feature are different depending on the remaining construction/mitigation features."103/ ARA describes the nonlinear relationships among loss relativity factors by considering the varying effects of a secondary rating factor, depending on whether it is installed or implemented in a weak or strong house. The 2008 ARA Report explains: for a generally strong building with only one weakness, the effect of the secondary factor is generally many times that of the effect of the secondary factor on an average building. For a weak building the secondary factor may not be very important since the building has so many other problems.[104/] These are simple illustrations of the nonlinear relationships among mitigative features. Notwithstanding the smoothed results in ARA's loss relativities tables, the effect on loss relativities of a single mitigative fixture or construction technique varies, depending on whether the house is strong or weak--i.e., depending on the presence of other mitigative fixtures and construction techniques. The synergistic effect of multiple mitigative fixtures and construction techniques in calculating damage states is mentioned below.105/ Relying on the loss relativities in the 2002 ARA Report, on January 23, 2003, OIR issued Informational Memorandum OIR-03-001M, which advised homeowners' insurers that, to ensure that future rate filings comply with section 627.0629(1), they should replace the shutter discount with a more elaborate set of discounts based on the primary rating factors identified in the 2002 ARA Report. Because of what it characterized as an "economically [in]significant" relativity adjustment factor of .98 for enhanced impact resistivity for doors, especially considering the "already very detailed and complex Form 1699,"106/ OIR omitted any credit for enhancing the impact resistivity of doors. To discourage "large rate changes" in anticipation of the elaborate discount scheme that had replaced the shutter discount, OIR temporarily "tempered" the stated value of the discounts by half. In January 2003, OIR also issued a form entitled Suggested Wind Premium Credits for Existing Construction. This form is identical to Form 1699, except that the identified discounts are halved, in accordance with the tempering described in the preceding paragraph. Hurricane Charley On August 13, 2004, Hurricane Charley struck Florida just southwest of Punta Gorda. Like Hurricane Andrew, Hurricane Charley generated peak gust wind speeds greater than 120 mph,107/ so it served as a design wind event, now under the FBC, from landfall to 120 miles inland.108/ Wind speeds of more than 120 mph, which is the midpoint of Category 3 hurricanes, are the threshold at which the building envelope of existing construction is normally stressed.109/ Wind speeds in excess of 120 mph therefore are required "to validate the effectiveness of wind mitigation features, since at low windspeeds the losses are . . . other than [to] the structural envelope."110/ The FEMA Charley Report states that Hurricane Charley made landfall as a Category 4 hurricane with one-minute sustained wind speeds of 150 mph and, like Hurricane Andrew, produced little storm surge or coastal flooding due to its narrow size and speed.111/ New construction performed well in Hurricane Charley. FEMA found: "the structural systems of buildings designed and constructed to the 2001 FBC performed as expected and thus there was little to no damage to the structural systems of these buildings."112/ Existing construction, of course, suffered more extensive damage from the strong winds of Hurricane Charley. Focusing on the risk that wind poses to windows, FEMA found, among other things, that unprotected windows led to structural failures due to increased internal pressures. FEMA stressed the heightened vulnerability of windows to impact damage: "Windows can be broken by over-pressurization, but this damage is not as common as debris-induced damage."113/ FEMA found that "[g]arage doors [were] blown in or out, allowing wind inside garages and often causing significant structural damage to the garages."114/ FEMA attributed the failures of residential garage doors throughout the Port Charlotte and Punta Gorda areas to low resistance to wind, not impact from wind-borne debris: In some instances, the doors buckled and were pulled outward (suction failures). . . . In other instances, the doors were pushed inward (positive pressure failures) . . .. Many of the failures occurred because the doors had inadequate wind resistance[, as] . . . most of the double car garage doors in older homes were not high-wind or debris-impacted rated.[115/] Notwithstanding the observation that few existing garage doors were wind- or impact-rated, the FEMA Charley Report focuses exclusively on wind resistivity in its discussion of commercial garage doors.116/ FEMA quantified the size of the hole in an exterior wall, including framed openings, that is sufficient to breach the building envelope. Holes as little as one percent of the wall area affect internal pressures, and holes of five percent of the wall area cause equalization of internal and external pressures.117/ Petitioner's expert witness testified that the critical size of a hole is four square feet, meaning that interior pressurization can take place in holes of this size or greater in the building envelope.118/ Garage doors that have failed due to wind pressure typically satisfy either of these critical-size criteria.119/ From its observations of damage from Hurricane Charley, FEMA concluded: This damage indicates that insufficient attention has been given to selecting materials or components of the building envelope that will meet the building code requirements for wind and water resistance. [N]ot enough attention is paid to building envelopes.[120/] FEMA recommended that existing windows be retrofitted so as to be impact resistant and existing garage doors be retrofitted so as to be "wind and impact resistant"--or, addressing only wind resistance--a design professional specify bracing for the door and reinforcement for the track.121/ FEMA found that the resistance of new construction to wind damage could be shared by existing construction that has undergone properly performed mitigation.122/ The Institute for Business & Home Safety (IBHS) and Door Access and Access Systems Manufacturer's Association prepared a report entitled Hurricane Charley: Garage Door Permit Study. Especially important given the extensive garage door damage observed by FEMA, IBHS determined that fixtures and construction techniques that increased the wind resistivity of garage doors provided substantial mitigative value in high winds.123/ 2008 ARA Report, FEMA HAZUS Manual and Florida Division of Emergency Management Procured by OIR, the 2008 ARA Report, which ARA issued in October 2008, incorporated the damage and insurance loss data available from the 2004 and 2005 hurricanes to determine, again, loss relativities for certain fixtures and construction techniques, on which OIR could rely in calculating discounts for these fixtures and construction techniques.124/ Among the important differences from the 2002 study were the modeling of 500,000 years' worth of storms,125/ two-story and multifamily residences, and recent changes to the FBC. Although the 2008 ARA Report adds rating factors, it does not add a rating factor for the wind resistivity of windows and door, nor does it contain a restated loss resistivity for the impact resistivity of doors. Converting into insured losses the damage observations of FEMA following Hurricane Charley, the 2008 ARA Report states that 125 mph winds produced dwelling losses of only 5% of policy limits for new construction, but 25% of policy limits for existing construction. Assuming that none of the existing construction had undergone wind mitigation, this meant that FBC-compliant construction had reduced insured losses by about 80%.126/ Bearing out the role of progressively more wind resistant building codes, whose inception was about 1995, ARA determined that wind losses trended down, based on the year of construction, from 1995 onward.127/ Prospectively, the adoption of the FBC has largely addressed the risk posed to new construction by hurricane winds. Retrospectively, though, much remains to be done. Bearing out the critical role of wind mitigation of Florida's existing housing stock, the 2008 ARA Report states: a) the insured value, in terms of dwelling coverage only, of owner-occupied, one-to-four-unit residences in Florida was nearly $1.1 trillion; b) the share of the insured value of that existing housing stock constructed prior to 1995 was about 59%; b) the share of the insured value of that existing housing stock constructed prior to 2002 was about 78%; and c) the share of the insured value of that housing stock constructed after 2001- roughly corresponding to what this Final Order has characterized as new construction--was about 22%.128/ Although the ratio of new construction to existing construction will continue to rise, in 2008, the insured value, for dwelling coverage only, of one-to- four-unit, owner-occupied existing residential construction was about $850 billion (after allocating a proportionate share of the insured value of residences whose age was unknown). Mitigative fixtures and construction techniques can reduce this $850 billion exposure--potentially, by as much as 80%, as mentioned above. The 2008 ARA Report provides a measure of confirmation of the findings, repeated elsewhere in this record, that doors are uniquely vulnerable to wind, not wind-borne debris, while windows are more vulnerable to wind-borne debris, but are still highly vulnerable to wind. The following findings are illustrative, not definitive, because they report the outputs of modeling runs of two homes with merely two sets of mitigative fixtures and construction techniques--one set resulting in a weak house and the other set resulting in a strong house. Appendix E of the 2008 ARA Report provides individual building analysis reports for a weak residence (with a nonFBC shingle roof covering and no protection of windows against impacts, among other features) and a strong residence (with an FBC tile roof covering and protection of windows against impacts, among other features).129/ Both modeled homes, which have attached garages, were exposed to over 2500 Category-3 or higher hurricanes. For the weak house, despite exposure to wind speeds of up to 200 mph, no garage door ever failed due to missile impact, only pressurization.130/ For the strong house, again despite exposure to wind speeds of up to 200 mph, no garage doors failed--from impact or pressurization.131/ In the weak house, windows failed much more often from missiles than wind pressure up to about 150 mph,132/ and, in the strong house, windows failed much more often from missiles than wind pressure up to about 185 mph.133/ Another source of data concerning the performance of garage doors, FEMA's technical manual to the HAZUS®MH MR2 hurricane model states that the replacement of a solid wall, which provides the greatest protection, with a strong garage door,134/ results in a "negligible" increase in modeled damage.135/ But the replacement of a solid wall with a weak garage door136/ results in an average increase in damage ranging from 2-24%.137/ As noted above,138/ the conversion of damage states to losses is a complicated process, but this difference in damage states is at least consistent with the inference that ARA's loss relativity adjustment for increased impact resistivities in doors is too conservative. Addressing the interdependency of mitigative fixtures and construction techniques, the FEMA technical manual warns: "the building performance is governed by the performance of the weakest link in the chain. If there are two links of roughly equal weakness, both must be strengthened."139/ FEMA illustrated this principle by noting that the average reduction in damage for a particularly configured home was 15% for enhancement of window protection and 27% for enhancement of roof strength, but the combined total of these two mitigative fixtures or construction techniques was 52%, not 47%.140/ According to the Hurricane Retrofit Guide published in 2010 by the Florida Division of Emergency Management, the "greatest risk" posed by hurricanes for most houses is to roofs and then windows and doors.141/ For most existing structures, which lack hurricane clips or straps holding the roof to the walls, "window and door protection may make the critical difference between losing your roof and keeping it on."142/ The Hurricane Retrofit Guide reports that windows are more susceptible to damage from wind-borne debris than wind pressure. The Hurricane Retrofit Guide warns that shutters over windows or doors are effective against damage from wind-borne debris, but "probably won't keep the doors and windows from bursting open from wind pressure if they are weak or poorly anchored to the walls of the house." If a window can withstand 40-50 pounds per square foot of wind pressure, the Hurricane Retrofit Guide continues, the window will "have a chance of resisting hurricane wind pressures," but most windows installed before 1996 are not strong enough to resist hurricane wind pressures.143/ Noting the size of garage doors and the prevalence, among older homes, of garage doors with low resistance to wind, the Hurricane Retrofit Guide concludes that garage doors may pose a heightened risk to homes: Because garage doors are so big, usually the single biggest opening on your house, and because most old doors are so weak, the survival of your garage door is very important to the survival of your house. Experience has shown in older houses that when garage doors fail in hurricane winds a lot of additional damage follows. When you are evaluating your house for its vulnerability to hurricanes you need to look at your garage door as one of the first and most important vulnerabilities. . . . * * * Failure of the garage door allows the full fury of the hurricane to enter the house to act on interior walls, doors, ceiling or roof that form the barriers between the inside of the garage and the rest of the house. This frequently leads to failure of these surfaces and can lead to significant loss of roof sheathing or loss of a part of the roof.[144/]
The Issue The issue is whether the plan amendments adopted by Ordinances 97-56, 97-59, 97-61, 97-63, 97-64, 97-66, and 97-67 are in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Background On November 14, 1997, Respondent Collier County (the County) adopted numerous amendments to its Growth Management Plan (the Plan). The County adopted these Plan amendments (the Plan Amendments) pursuant to its Evaluation and Appraisal Report (EAR). By law, local governments must assess their comprehensive plans every seven years and prepare an EAR. On December 24, 1997, Petitioner Department of Community Affairs (DCA) published its Notice of Intent to find the Plan Amendments not in compliance with the criteria of Chapter 163, Part II, Florida Statutes (Chapter 163), and Chapter 9J-5, Florida Administrative Code (Chapter 9J-5). A detailed Statement of Intent is attached to the Notice of Intent. The petition of DCA incorporates the Statement of Intent. The petition of Intervenors Collier County Audubon Society, Inc., and Florida Wildlife Federation (Intervenors) also incorporates by reference the Statement of Intent. The petitions cite 16 grounds for a determination that the Plan Amendments are not in compliance with Chapter 163 and Chapter 9J-5, although, at hearing, Intervenors dropped Issue 5. Intervenor Collier County School Board (School Board) intervened to defend the Plan Amendments regarding the siting of schools. The parties stipulated to the standing of all of the parties. The Plan, as amended by the Plan Amendments (County Exhibit 1), discloses repealed and added language by strikeouts and underlines, respectively. All but two of the issues involve amended Plan provisions. The two exceptions are the Intergovernmental Coordination Element (ICE) (Issue 1) and Housing Element (Issue 4). In Issue 1, DCA and Intervenors challenge ICE Policy 1.2.6 and its effect of allowing schools to be sited anywhere in Collier County. Although the County did not amend ICE Policy 1.2.6, it substantially amended another Plan provision with the effect of relaxing restrictions on the siting of schools. In Issue 4, DCA and Intervenors challenge Plan provisions governing farmworker housing as not supported by the best available data and analysis. Although the County did not amend these Plan provisions, Petitioner and Intervenors contend that updated data and analysis demanded that the County do so. Issue 1 ICE Policy 1.2.6 states: The County shall continue to coordinate with the Collier County School Board on the site selection for new schools and the provision of infrastructure, particularly roads, to support existing and proposed school facilities in accordance with the Interlocal Agreement adopted in accordance with Chapter 163.3177 F.S. on June 25, 1996. Although unamended by the Plan Amendments, ICE Policy 1.2.6 is subject to challenge because of the effect of other EAR amendments on school siting. Plan Amendments in the Future Land Use Element (FLUE) affect school siting, but the effect of other Plan Amendments is to restrict slightly school-siting standards. For instance, prior to the Plan Amendments, the Plan generally allowed schools in areas designated Agricultural/Rural. As amended, FLUE II.g adds some restrictions to schools as a land use in areas designated Agricultural/Rural. This provision reads: Community facilities such as churches, group housing uses, cemeteries, and schools which shall be subject to the following criteria: Site area and school size shall be subject to the General Educational Facilities Report submitted annually by the Collier County School Board to the Board of County Commissioners. The Site must comply with the State Requirements for Educational Facilities adopted by the State Board of Education. The site shall be subject to all applicable State or Federal Regulations. The County made the identical change in permitting schools in the Conservation designation. For the Urban designation, the County repealed the identical former language, but, in adding schools as a permitted use, did not include the three bulleted provisions quoted above. However, a Plan Amendment to the Sanitary Sewer Subelement (Sanitary Sewer) outweighs the slight restrictions added in the Plan Amendments to the FLUE and results in a net relaxation of the school-siting standards. In the Plan Amendments, the County repealed Sanitary Sewer Subelement (Sanitary Sewer) Policy 1.1.6, which provided: By January 1, 1990, review existing criteria and regulatory framework for septic tank installations and determine the suitability of same for Collier County by December 31, 1990, implement local ordinances regulating septic tank installations if above review indicates need to do so. Prior to its repeal, Sanitary Sewer Policy 1.1.6 threatened the continued reliance on septic tanks, especially for more intensive uses, such as schools. Although reliance upon septic tanks is not the School Board's preferred means of disposing of sanitary sewage, the School Board has determined that the use of septic tanks is economically feasible. At present, septic tanks exclusively serve the sanitary sewer needs of one public school, Big Cypress Elementary School, which is located on Golden Gate Boulevard east of State Road 951 and is attended by over 1000 students. As long as Sanitary Sewer Policy 1.1.6 was in effect, the School District was on notice that its ability to site schools without regard to the availability of central sewer, including larger package plants, was in doubt. The repeal of Sanitary Sewer Policy 1.1.6 eliminates that doubt and invites school-siting decisions without regard to Plan-imposed, or at least -threatened, requirements of central sewer. As a result of the Plan Amendments, the Plan effectively allows the School District to site schools through the entire range of future land use designations, including conservation areas. In place of regulating school uses like other land uses--i.e., in the Plan--the County instead has elected to resolve school-siting issues through another means--i.e., an Interlocal Agreement, which is mentioned in Sanitary Sewer Policy 1.2.6. However, the use of the Interlocal Agreement, rather than the Plan, attenuates public participation, precludes plan challenges by the public or DCA under Chapters 163 and 9J-5, and fails to ensure that the two parties will site schools consistent with the minimum criteria of Chapters 163 and 9J-5. Withdrawing school-siting decisions from the comprehensive planning process interferes with the ability of the Plan to address the demand that schools will place upon public facilities, such as traffic, sewer, water, solid waste, drainage, and recreation. As do the County and School Board in the Interlocal Agreement, the Florida Department of Education likewise recognizes the direct effects of school siting. Section 1.4(2) of the State Requirements for Educational Facilities, 1997, published by the Florida Department of Education, identifies numerous factors that school boards should consider in siting schools, including the compatibility of uses of adjacent property, the capacity of roads, and the effect (on the buildings) of siting in a floodplain. As the floodplain can affect the school, so the school can affect the floodplain, but the effects of schools on natural and manmade resources receives little, if any, attention in the State Requirements for Educational Facilities or the Interlocal Agreement. When addressing public facilities, the educational planning documents focus on the effects upon the users of the school, such as the capacity of the roads to accommodate the parents driving their children to school or the location of the school in an area safe from flooding. Schools also have indirect effects on natural and manmade resources, especially when a public school is sited in a relatively undeveloped area. Induced sometimes by the availability of relative inexpensive land and developer-provided incentives, the construction of a public school exemplifies the "if you build it, they will come" scenario. The construction of a public school may compete with excess road capacity as a development-attractor to a relatively undeveloped area within a larger area undergoing brisk population growth. Thus, school- siting decisions may have large indirect effects on the natural and manmade resources in an area, well in excess of the impact of the school itself or the demand upon public facilities made by its users. DCA and Intervenors have proved by a preponderance of the evidence that, after consideration of the Plan Amendments affecting the siting of schools, ICE Policy 1.2.6 is inconsistent with the criterion of designating the future general distribution, location, and extent of educational uses of land. By ignoring the issue of school-siting in the Plan, the County has failed to address, in the planning process and in the Plan, issues such as the proximity of schools to existing or future residential development, the identification of land uses incompatible with schools, and the prohibition of the siting of schools in locations that fail to preserve environmentally sensitive lands, such as floodplains, unique native habitats, or habitats for listed species. By relaxing its school-siting standards, the Plan fails to meet the pleaded minimum criteria of land use planning and forfeits an opportunity to discourage urban sprawl and encourage a comprehensive planning solution to the challenges of population growth and the development and redevelopment of land. Issue 2 As amended, Natural Groundwater and Aquifer Recharge Subelement (Groundwater) Objective 1.2 replaces a promise to adopt a groundwater protection ordinance by August 1, 1989, with the following: Implement the Collier County Ground Water Protection Ordinance that includes: regulation of land use activities County-wide as well as within wellfield protection zones surrounding identified public water supply wellfields and identified sensitive recharge areas; and County-wide ground water quality criteria, to protect the County's ground water resources as well as sensitive recharge areas. Groundwater Policies 1.2.1 through 1.2.4 provide: The Ordinance will address both existing and projected future land use and surface activities. Apply action criteria specified in the Collier County Ground Water Protection Ordinance to both existing and future regulated development according to procedures specified in the Ordinance to protect the County's ground water resources. The Ordinance will continue Apply criteria for ground water protection specified in enforcement procedures specified in the Ordinance, to provide an appropriate level of protection to sensitive recharge areas. The Ordinance will address the breaching of confining units by improper well construction, rock mining and other excavations, blasting and other similar activities. Apply the criteria of those sections of the Collier County Ground Water Protection Ordinance that address: breaching of confining units by improper well construction, rock mining and other excavations, blasting, and other similar activities to protect recharge of the Surficial Aquifer System, to planned/permitted future development. The County will implement the Ordinance in a manner to minimize duplication of effort between the County and other State agencies. Implementation of the Collier County Ground Water Protection Ordinance will follow Ordinance procedures, and other internal County procedures in a manner to minimize duplication of effort among County, municipal, and State agencies. DCA and Intervenors have proved by a preponderance of the evidence that Groundwater Objective 1.2 does not supply a specific, measurable, intermediate end that is achievable and marks progress toward a goal. As presently formulated, this objective is nothing but a promise of the implementation of a land development regulation whose regulatory content or performance criteria are omitted from the Plan. The objective defers the establishment of regulatory content and performance standards to the land development regulations. The objective itself offers no protection to the groundwater resources or aquifer recharge areas because the County has relegated this crucial task to the land development regulations. The deferral and relegation of regulatory content and performance standards--required by Chapters 163 and 9J-5--to the land development regulations gravely undermines the entire comprehensive planning process for several reasons. Through deferral and relegation, the County retains the ability to amend or repeal the regulatory content and performance standards without a Plan amendment, which means without the public participation, agency review, and opportunity for a hearing that must accompany Plan amendments. Through deferral and relegation, the County insulates the regulatory content and performance criteria that are required to be in the Plan from determinations of consistency with the criteria of Chapters 163 and 9J-5 (including the crucial criteria of minimum content and supporting data and analysis), the regional policy plan, and the state comprehensive plan. Deferral and relegation to land development regulations do not insulate the provisions setting regulatory content and performance criteria from a consistency determination with the provisions of the Plan. However, the deferral and relegation effectively limit substantially affected persons to challenging the consistency of the land development regulations with the Plan, although this may be a meaningless right if the Plan lacks the required regulatory content and performance standards, against which the land development regulations may be compared. Also, because the comparison is between a land development regulation and Plan provision, the result of a finding of any inconsistency raises the likelihood of the elimination of the land development regulation, rather than the Plan provision with which it is in conflict, due to the relative ease of amendment or repeal of land development regulations as opposed to Plan provisions. Lastly, through deferral and relegation, the County insulates any regulatory content and performance criteria from an enforcement action, under Chapter 163, concerning development orders that are inconsistent with Plan provisions. Although other enforcement actions may be available for development orders inconsistent with land development regulations, the Chapter 163 action provides the added safeguards of statutory intervention by the Florida Department of Legal Affairs and recognition of relatively broad standing among private parties. DCA and Intervenors have proved by a preponderance of the evidence that the four policies do not identify programs and activities by which the County will achieve the planning goals or objectives that the policies are supposed to serve. Like Groundwater Objective 1.2, Policies 1.2.1, 1.2.2, 1.2.3, and 1.2.4 improperly defer and relegate to the land development regulations the identification of those programs and activities that are required to be in the Plan. The policies are impermissibly vague because they rely on land development regulations to identify the programs and activities necessary to achieve goals and objectives, rather than identify in the Plan the programs and activities, possibly leaving to the land development regulations the task of providing an additional level of detail for these programs and activities. For the reasons stated in Paragraphs 26-30 above, the County has improperly deferred and relegated to the land development regulations descriptive material that must be contained in the Plan. DCA and Intervenors have proved by a preponderance of the evidence that the Plan, including Groundwater Objective 1.2, is inconsistent with the criterion of an objective protecting the functions of natural groundwater recharge, and the Plan, including Groundwater Policies 1.2.1 through 1.2.4, is inconsistent with the criterion of regulating land use and development to protect the functions of natural groundwater aquifer recharge areas. Issue 3 Drainage Subelement (Drainage) Policy 1.1.2 provides: Outline how to iImplement procedures and projects within the County's Land Development Code and those procedures delegated by South Florida Water Management District during 5 year planning time frame to ensure that at the time a development permit is issued, pre- development versus post development discharge rates are monitored to assure that adequate water management facility capacity is available or will be available when needed to serve the development. The flaws of the Drainage Policy 1.1.2 start with the County's failure to adopt, in the Plan, an enforceable level of service (LOS) standard for drainage. Drainage Objective 1.2 provides that the County shall "Adopt Maintain adopted level of service standards for basins and sub-basins identified in the Water Management Master Plan." This master plan appears to be a part of the land development regulations, not the Plan. For the reasons stated in Paragraphs 26-30 above, this deferral and relegation of a crucial and required provision of a Plan--i.e., setting a drainage LOS--undermine the Plan's approach to drainage. Drainage Policy 1.2.1 formerly provided that the County would use the findings from a study to be conducted under the master plan to "identify existing levels of service for all the drainage basins and sub-basins." A parenthetical note states that the County completed this task in May 1990. New Drainage Policy 1.2.1.A provides, for "future 'private'" development, that the drainage LOS standards are the "water quantity and quality standards" specified in various ordinances that are not incorporated into the Plan. New Drainage Policy 1.2.1.B assigns "existing 'private'" development and "existing or future public drainage facilities" LOS standards identified in the master plan. For such development, a table assigns letters to various basins, but the meaning of the letter is not explained in the Plan. The net effect of this objective and policies is that the Plan defers and relegates to the land development regulations the crucial task of setting comprehensive drainage LOS standards--comprehensive in the components of drainage (e.g., hydroperiod, rate, quality, and basin) and comprehensive in the scope of development (i.e., all private and public development and redevelopment, including public development, not just "public drainage facilities"). In the context of other Drainage provisions, Drainage Policy 1.1.2 is essentially useless. It defers and relegates to the land development regulations the regulatory content (including setting a drainage LOS), performance criteria, and identification of programs and activities. On its face, given the failure of the Plan to set a drainage LOS, Drainage Policy 1.1.2 promises nothing more than the monitoring of post- development runoff. DCA and Intervenors have proved by a preponderance of the evidence that the Drainage Policy 1.1.2 does not identify programs and activities by which by which the County will achieve the planning goals or objectives that the policy is supposed to serve and that the Plan lacks a policy regulating land use and development to protect the functions of natural drainage features. Issue 4 This issue raises the question whether the County relied on the best available data when preparing Plan provisions concerning farmworker housing. In their joint proposed recommended order, the County and School Board offer proposed Plan amendments providing for the collection of new farmworker housing data in 1998, the analysis of the data in 1999, and the adoption of any necessary Plan amendments in 2000. This is consistent with the tenor of the testimony of their witnesses: the County wants more time to conduct more studies to determine if farmworker housing needs may have lessened somewhat. The data and analysis accompanying the revisions to the Housing Element (Housing) include analysis of 1990 census data done by the Shimberg Center at the University of Florida. Tables showing the percentage in the unincorporated County of owners and renters, respectively, paying more than 30 percent of their income for housing reveal that, for persons with annual incomes of less than $10,000, the percentages are 76.1 and 95.9; for persons with annual incomes of $10,000 to $19,999, the percentages are 44.3 and 75.9; and for persons with incomes of $20,000 to $34,999, the percentages are 32.3 and 31.4. After reciting these data, the Housing data and analysis state: The previous tables indicate a strong need for more affordable owner and rental opportunities throughout the County. Very low, low[,] and moderate income families who pay more than 30 [percent] of their gross monthly income on housing cost are considered to be "cost burdened" according to the U.S. Department of Housing and Urban Development. As a County witness testified, 85-90 percent of County farmworkers reside in Immokalee. According to the County's own data, 36.8 percent of the housing units in the Immokalee area are substandard. The next highest area has 13.4 percent substandard housing, and the next highest has 4.7 percent substandard housing. Of the 4507 units in the Immokalee area, 101 lack plumbing, 74 lack kitchens, and 134 have more than 1.01 persons per room (with some units appearing in more than one category). After reciting these data, the Housing data and analysis state: As the housing stock continues to age, there is a need to provide housing rehabilitation programs for the very low to moderate income rental and owner occupied households in order to prevent continuing deterioration and potential substandard housing conditions. After displaying other data, the Housing data and analysis report that various tables prepared by the Shimberg Center project a very large deficit of affordable, renter occupied and owner occupied dwelling units for the years 2000, 2005 and 2010. Local estimates have not been calculated but efforts to address the estimated deficits are identified in the Housing Element. According to the Shimberg Center data, there is a county wide need for 4,973 affordable rental units and 9,500 affordable owner occupied units by 2000 for a total of 14,473 affordable housing units. Responding to these data, the Housing data and analysis state: The City [Naples] established a goal of encouraging the development of 500 affordable housing units each year within the urban area boundaries identified in a 1994 Interlocal Agreement. Based upon County data collected for this Interlocal Agreement's 500 unit goal, the statistics indicate that 30 [percent] of all single family building permits issued since July 1994 meet the Interlocal Agreement[']s affordable housing criteria. Since the adoption of this Interlocal Agreement, an average of 600+ affordable housing units have been produced countywide each year. Since the urban area target of 500 unit[s] per year has been met, it is recommended that the target be increased to 750 units countywide. A target of 750 units countywide is realistic based upon building permits and [certificates of occupancy] issued annually. The tables contain a comprehensive projection of affordable housing for all income ranges and are not limited to persons with moderate or less annual incomes. Thus, for unincorporated Collier County, one table discloses a deficit of 287 units by 2010 for persons making over $150,000 annually. Addressing farmworker housing specifically, the Housing data and analysis mention the County's 1994 Immokalee Housing Study. Housing designated exclusively for farmworkers consists of privately owned migrant labor camps and Farm Worker Village, which was built with the assistance of the Farmers Home Administration and is owned and operated by the County. The Housing data and analysis note that farmworkers "are also housed in a variety of other housing that is usually substandard, deteriorated or overcrowded." The Housing data and analysis report that farmworker housing in the Immokalee area includes migrant labor camps and shared housing. The Housing data and analysis note that there is no farmworker housing located on the farms in the Immokalee area. According to the Housing data and analysis, the 109 migrant camps in the County comprise 1987 units. The County owns and operates 571 one- to four-bedroom units for rent at affordable rates, but, at the time of the survey, there were 60 applications on the waiting list for these units. The County also has 276 Section 8 certificates from the Farmers Home Administration. Families paying more than 30 percent of their income on housing are eligible for these certificates, which are limited to housing expenses in rural areas. Surveying existing studies, the Housing data and analysis concludes that 4.5 persons reside in each farmworker household. Restating projections from the County's 1994 Immokalee Housing Study, the Housing data and analysis report that, in 2005, farmworker housing demand will consist of 10,711 permanent units and 3251 seasonal units for a total of 13,962 units. For 1995, the Housing data and analysis calculate that the 2961 available seasonal units could accommodate, at 4.5 persons per dwelling unit, 13,324 of the 33,134 seasonal residents, leaving a shortfall of housing for nearly 20,000 seasonal residents or, at 4.5 persons per dwelling unit, 4402 units. However, this analysis understates projected needs for farmworker housing because, without analysis, it uses for all future years the current estimate of 4.5 persons per dwelling unit without considering whether greater availability of affordable housing would reduce the number of persons per dwelling unit. The dispute begins to emerge when the Housing data and analysis note the obvious difficulty of establishing accurate farmworker population figures and conclude that the population increases are relative to the amount of acreage in production at the time of the population count. The County contends that future farmworker housing demands are artificially high because they do not reflect recent trends reducing agricultural operations. However, the County's contentions are unsupported by data and analysis collected in accordance with a professionally recognized methodology. To the contrary, the County elsewhere in the Plan estimated that seasonal farmworker residents, who are present in the Immokalee area during the winter months, would increase by 25 percent after 1992 "to reflect the anticipated expansion of the citrus industry." FLUE, page 57. The County elsewhere relied on the projection of the South Florida Water Management District that agricultural water demands will increase by 46 percent from 1990 to 2010. Conservation, page 35. According to the FLUE data and analysis, nearly 6000 acres of land in the Immokalee area were devoted to agricultural uses. This is only about 2.5 percent of the nearly 250,000 acres in agricultural uses in the County and only about 0.4 percent of the 1.3 million acres in the County. The County's contention of declining needs for farmworker housing repudiates the findings and conclusions of the County's own 1994 Immokalee Housing Plan and the Shimberg Center's more recent work. Rather than address these data and analysis in preparing the Housing goals, objectives, and policies, the County relied on speculation and conjecture that farmworker housing needs may have declined, or may soon decline, due to a perceived decline in agricultural operations. No data indicate what agricultural operations have declined or may decline or, more importantly, the effect of any such decline on the need for farmworker housing. The County did not analyze even this conjecture and speculation from the perspective of other relevant data and analysis, such as the leveling off of a decline, in the mid-1990s, in tomato farming; possibly offsetting trends in other labor-intensive farming; possibly offsetting trends in labor-intensive farming around Immokalee; and trends in Hendry County labor-intensive farming and the impact of Hendry County farmworkers choosing to reside in Immokalee. The available data and analysis reveal ongoing shortages in affordable housing of nearly 15,000 units by 2000. For migrant farmworkers, the available data and analysis suggest a shortage of nearly 4500 units in 1995. The data and analysis suggest that other farmworker substandard housing units will be lost to attrition. Except as it involves farmworker housing, the County relied on a 25 percent increase in farmworkers after 1992 and a 46 percent increase in agricultural water demands from 1990 to 2010. Ignoring the available data and analysis, the County relied on vague concerns about a reduction in labor-intensive agricultural operations in support of its development of affordable housing strategies that do not focus on the unique and pressing needs of farmworkers. The following Plan provisions repeatedly fail to respond adequately to the quantitative and qualitative housing needs of farmworkers. Housing Objective 1 is to increase by only 500 units annually the number of new affordable housing units for persons earning a wider range of incomes than do farmworkers "to continue to meet the housing needs of all current and future very-low, low[,] and moderate income residents of the County, including those households with special needs such as rural and farmworker housing in rural Collier County." Failing to focus measurably the affordable-housing effort on farmworker housing, Housing Policy 1.4 states: Affordable housing will be distributed equitably throughout the County using strategies which include, but are not limited to, density bonus agreements and impact fee waivers or deferrals. In addition, affordable housing will be located where adequate infrastructure and services are available. Housing Objective 2 is to create a nonprofit housing development corporation by 2000, with representatives from business, government, housing advocates, and the general community, to assist the County in achieving the annual goal of 500 new units, as stated in Housing Objective 1. Housing Policy 2.1 is to increase the supply of housing for very low, low, and moderate income residents, including farmworker housing, through the use of existing programs, such as low income housing tax credits, density bonuses, and impact fee waivers or deferrals. DCA and Intervenors have proved by a preponderance of the evidence that the cited Housing objectives and policies are not supported by the data and analysis. In preparing the revised provisions of the Housing Element, the County relied on speculation and anecdotal evidence of reductions in the numbers of farmworkers, declining to address the professionally collected data and analysis of that data, including the County's own data- collection and -analysis. DCA and Intervenors have proved by a preponderance of the evidence that the Plan lacks policies providing guidelines or criteria for the location of farmworker housing. The data and analysis reveal a crucial need for such housing in the Immokalee area, but the Plan, most notably Housing Policy 1.4, fails to address these data and analysis by failing to focus affordable- housing efforts for farmworkers where the need is greatest. The Plan also fails to establish locational criteria or guidelines to assure that the farmworker housing best serves the needs of the farmworkers. Issue 5 Prior to these amendments, Golden Gate Area Master Plan (Golden Gate) Policy 2.2.3 provided that the County would apply the stricter of its special development standards or Chapter 28-25, Florida Administrative Code, to applications for development within South Golden Gate Estates. However, these amendments repealed Golden Gate Policy 2.2.3 and replaced it with new Golden Gate Policy 2.1.4, which provides that the County will apply Chapter 28-25, Florida Administrative Code, to applications in "those Golden Gate Estates units located within the Big Cypress Area of Critical State Concern." The state rules limit site alterations to 10 percent of the total site, limit impervious areas to 50 percent of the site, and prohibit alteration of the natural flow of water. The effect of the Plan Amendment is to remove these land use restrictions from the part of the South Golden Gate Estates that is not in the Big Cypress Area of Critical State Concern. As reported in the Golden Gate data and analysis, "hailed as the world's largest subdivision," the Golden Gates Estates subdivision encompasses about 170 square miles or eight percent of the County. Golden Gates Estates is located in central Collier County. Part of Golden Gate Estates is located east of Interstate 75, north of the point at which the interstate turns east and heads toward Miami. South Golden Gate Estates is located south of Interstate 75. Gulf American sold 95 percent of the lots in Golden Gate Estates by 1965. South Golden Gate Estates comprises around 17,000 parcels, including about 10,000 parcels under 2.25 acres. Approximately 2000 people live in South Golden Gate Estates, although the actual number may be higher due to unpermitted construction. About 8000 people live in the remainder of Golden Gate Estates. Totaling 94 square miles, South Golden Gate Estates is surrounded by the Florida Panther National Wildlife Refuge to the north, the Picayune Strand State Forest and Belle Meade (about 16,000 acres on the CARL list for state acquisition) to the west, the Cape Romano/Ten Thousand Islands Aquatic Preserve to the south, and Fakahatchee Strand State Preserve to the east. The Fakahatchee Strand State Preserve is separated from Big Cypress National Preserve to the east by State Road 29. Northwest of the Cape Romano/Ten Thousand Islands Aquatic Preserve is Rookery Bay Aquatic Preserve, which lies between Marco Island and Naples Bay. Major public conservation lands in the County--all near Golden Gate Estates--include Big Cypress National Preserve (534,947 acres), Fakahatchee Strand State Preserve (65,524 acres), and Florida Panther National Wildlife Refuge (24,300 acres). Major additions include another 100,000 acres added to the Big Cypress National Preserve, but in the northeast part of the County away from Golden Gate Estates, and 30,000 acres in Golden Gate Estates (with nearly 12,000 acres already acquired). A large portion, if not all, of South Golden Gate Estates is proposed for state acquisition under the Save Our Everglades program, but progress, until recently at least, has been slow. The state has imposed the Big Cypress Area of Critical State Concern over the entire County east of Golden Gate Estates, as well as a large area south of South Golden Gate Estates. Most of the Area of Critical State Concern encompasses publicly owned land, but privately owned land is also within the Area of Critical State Concern. DCA contends that the data and analysis do not support the Plan Amendments that are the subject of Issue 5. The effect of the replacement of one policy with another policy is to relax development restrictions in the part of Golden Gate Estates outside of Areas of Critical State Concern. The Drainage data and analysis describe the patterns of surface water runoff characteristic of the County prior to alteration of these natural drainage features. In general, there is a nearly imperceptible ground slope in the County from a high point near Immokalee in the north-northeast corner of the County to the south and southwest to the Gulf of Mexico. Slopes as little as 4 inches per mile are common east of State Road 29; slopes of 12 inches per mile are typical to the west of State Road 29. Prior to construction of artificial drainage facilities, the runoff traveled slowly through long sloughs, which are shallow but wide depressions, and extensive cypress forests in its journey toward the estuaries and bays of the Gulf of Mexico. The natural rhythm between the wet season and the slow, natural drainage left vast parts of the County, including what is now Golden Gate Estates, seasonally inundated. The natural drainage patterns attenuated the runoff, so as to permit the upstream deposit of much of the sediments and nutrients borne by the runoff prior to its entry into rivers and bays. The natural drainage patterns also created native habitat for various plant and wildlife species seeking the periodic or permanent wetlands hydrated by the runoff. The first major disturbance of this natural drainage process came with road construction. Development of roads in the County typically involved the excavation of a canal and the application of the excavated material into the road base, so as to raise the road surface above the surrounding water level. State Road 29, which runs south from Immokalee to Everglades City in the southeast corner of the County, was constructed in this matter in 1926, as was U.S. Route 41 (Tamiami Trail) two years later, reportedly in a transaction in which Baron Collier constructed the road in return for a conveyance from the state of what became Collier County. The logging industry used the same process to construct tramways for transporting cypress logs during the 1950s. The extension of these early canals allowed the expansion of agricultural and other uses of seasonally or permanently inundated lands. The Drainage data and analysis conclude their description of this process as follows: The above described method of "ditch and drain" development in Collier County resulted in a haphazard series of canals that had a tendency to lower the water table and change the flow patterns of the natural drainage basins. In addition to canals, many dikes were constructed around very large tracts of land and the water levels lowered by pumping to create agricultural land. This combination of development events impacted large areas of wetland and began to concentrate the flow of stormwater run-off instead of allowing the traditional sheetflow across the land. In the area adjacent to Naples, developers had cut canals in order to lower the water table and facilitate the construction of housing. In the late 1950s and early 1960s, Gulf American Corporation took this practice to a new level in the development and worldwide marketing of 173 square miles of land and water that came to be known as Golden Gate Estates. Prior to development, much of the area consisted of waterbodies several feet deep through the wet season. In general, the area was flat swamp lands featuring cypress forests, pine forest islands, and wet and dry prairie. In order to market Golden Gate Estates as a vacation and retirement community, Gulf American undertook a vast drainage project in an effort to eliminate from the landscape and waterscape waterbodies several feet deep through the wet season and flat swamp lands featuring cypress forests, pine forest islands, and wet and dry prairie. Major components of this effort were clearing 813 miles of paved and limerock roads and dredging 183 miles of canals, which drain into the Gordon River, Naples Bay, and Faka Union Bay. The County approved the Golden Gate Estates subdivision in early 1960, and, five years later, 90 percent of the land had been platted and sold in parcels of 1.25, 2.5, and 5 acres. As the Golden Gate data and analysis explain, the County rezoned the area to low-density residential when it became apparent that it could not provide essential facilities and services. The artificial drainage facilities that replaced natural drainage features and converted land from water facilitated the urbanization of the County. Urbanization brought large increases in impervious surface. Large increases in impervious surface produced even more and faster runoff and a decrease in percolation into the groundwater system. The effect on the artificial drainage system was to overwhelm it during major or serial storm events, resulting in flooding. Flooding completed the cycle by resulting in additional artificial drainage facilities. The addition of more artificial drainage capacity adversely affected natural resources in several respects. The addition of more artificial drainage capacity accelerated the rate at which canals transported stormwater into the Gulf, so as to eliminate or reduce the duration of flooding. But the rushing stormwater destabilized channels and reduced the opportunity for natural filtration of sediments and nutrients. The bays and estuaries into which the stormwater eventually runs thus received increased loads of sediments from destabilized channels and increased loads of sediments, nutrients, and pollutants from decreased filtration. Another effect of the addition of more artificial drainage capacity was to lower the water table elevation at all times, not just during the wet season. Thus, the canals overdrained large areas, including Golden Gate Estates, leaving them especially vulnerable to fire during the dry season and droughts during the wet season. The Golden Gate data and analysis report that the annual acreage consumed by fire increased eightfold after Golden Gate Estates was drained so as to alter the hydroperiod and lower the water table. The fires became more severe, eliminating the organic (humus) part of soils and thus discouraging post-fire, vegetative recolonization. The replacement of natural drainage features with artificial drainage facilities dramatically altered natural hydroperiods and, in so doing, destroyed wetlands and wetlands habitat, encouraged saltwater intrusion, and degraded estuaries and eliminated marine habitat by altering the timing and amount of freshwater infusions on which commercially harvested fin fish, shellfish, and sport fish depend at some point in their life cycle. The effect of artificial drainage facilities on water quality, water quantity, and hydroperiod adversely affected recharge of the surficial aquifer, on which the County depends for most of its drinking water. The surficial aquifer receives 90 percent of its recharge from rain and surface flow with direct infiltration from rainfall being the most important source of recharge of the water table aquifer, according to the Groundwater data and analysis. As the Drainage data and analysis concede, artificial drainage facilities have reduced aquifer recharge, which is often best served during flood events when the drainage facilities are overwhelmed. Additionally, as the Groundwater data and analysis note, runoff-transported pollutants can enter the groundwater, just as they can enter surface waters. The Groundwater data and analysis state that protection of natural groundwater recharge relies on land use restrictions that ensure that land uses do not change the recharge process in terms of timing, water quantity, or water quality. The Groundwater data and analysis identify two factors as affecting timing and water quantity: covering recharge areas with impervious surfaces and overdraining recharge areas by canals. In terms of water quality, the Groundwater data and analysis warn of pollutants introduced directly into the water table aquifer by stormwater detention/retention facilities, sewage treatment percolation ponds and absorption fields, and septic systems. Based on a formula developed by the Environmental Protection Agency that considers, among other things, water table elevation and soil permeability, the Groundwater data and analysis warn that County groundwater is highly sensitive to groundwater contamination. In particular, the Groundwater data and analysis recommend the investigation of possible groundwater contamination through the agricultural use of pesticides and fertilizer and the residential use of septic tanks in the area of the East Golden Gate Wellfield. The Groundwater data and analysis recommend, among other things, land use controls around wellfields, areas of high transmissivity, and major hydrological flowways. In light of the deleterious impacts of artificial drainage facilities on water quality, water quantity, and aquifer recharge, the Drainage data and analysis suggest that the drainage LOS standards address these three factors. The Drainage data and analysis state that it is "essential" that the stormwater management standards concerning water quality provide treatment levels "at least compatible with current state requirements. Drainage, page D-I-3. Regarding water quantity, the Drainage data and analysis state that the standards must provide adequate flood protection for developed areas and sufficient water to maintain aquifers, wetlands, and estuarine systems. The Drainage data and analysis discuss the difficulties the County experienced in trying to set a drainage LOS. Historically inadequate systems compounded the problem. Developments permitted prior to 1977, including all of Golden Gate Estates, were designed only to protect against flooding in the event of the ten-year storm, and these developments have an inconsistent record in meeting even these relaxed standards. The County required post-1977 development to meet the more demanding standards of the 25-year, 3-day storm event, and these developments have generally done so. The Drainage data and analysis report that the County hired consulting engineers in 1989 to prepare the Stormwater Management Master Plan. Out of this work emerged LOS standards using water quality as a function of the storm event, water quantity, and the potential of the area to provide aquifer recharge. However, neither the Plan nor even the Drainage data and analysis disclose these drainage LOS standards. The discussion of the drainage LOS standards does not focus extensively on basin issues as to water quantity. Another feature of a drainage LOS, the basin in which runoff is naturally found is important because drastic alterations of basin may alter the periodic, natural changes in salinity necessary to the health of the receiving estuaries. Due to the flatness of the topography, basins in the County naturally shift, depending on the location of rainfall and amount of rainfall compared to the capacity of the natural drainage features. Roads that run along the barely perceptible ridge lines defining a basin change the dynamic of location and amount of rainfall compared to the capacity of the natural drainage feature, so as possibly to change the basin receiving the resulting runoff. Roads that cut across ridge lines have an obvious effect on receiving basins. Canals have similar effects on these basins. Citing the results of the Stormwater Management Master Plan, the Drainage data and analysis list the ten major basins in the County. However, after listing these basins, the Drainage data and analysis note: At this time, an aggressive stormwater management capital improvement project construction is not proposed. The intent is to respond to the will of the local citizens as they petition the Board of County Commissioners to design and construct stormwater management improvements through the creation of taxing and/or assessment districts. The omission of the drainage LOS standards from the Plan (and, although not strictly relevant, even from the data and analysis) precludes an determination of the scope and effect of the County's decision not to schedule stormwater improvements until residents demand such public facilities. Nothing in the Plan allows the informed reader to learn whether the County's undisclosed drainage LOS standards have adequately blended the objective of natural-resource protection with the objective of flood control. Nothing in the Plan allows the informed reader to learn of the extent to which the County must apply these undisclosed drainage LOS standards to development, redevelopment, and unchanged land uses (i.e., retrofitting). The effect of the omission of drainage LOS standards from the Plan is heightened by certain water-quality trends during the ten-year period ending in 1989, coupled with the County's reduction in water-quality monitoring during the ensuing ten years. Map LU-92 in the Conservation data and analysis identifies 24 "estuarine bays" from the Lee County line south to Everglades City. These bays include Clam Bay, which is just north and west of the terminus of Pine Ridge Road; Doctors Bay, which is immediately north of Naples; Naples Bay, which is immediately south of Naples and receives water from the Gordon River and Haldeman Creek; Rookery Bay, which is south of Naples about midway between Naples and Marco Island and receives water from Henderson Creek; and Faka Union Bay and Fakahatchee Bay, which are roughly midway between Marco Island and Everglades City. According to the Conservation data and analysis, the worst water quality reported by the Department of Environmental Protection in a 1994 statewide assessment of water quality was the estuarine portion of the Gordon River, which violated water quality standards for conductivity and dissolved oxygen. Rated as "threatened or moderately impaired" in this study, Naples Bay violated water quality standards for conductivity. A portion of the Henderson Creek Canal violated water quality standards for conductivity and dissolved oxygen. The Conservation data and analysis note that the County assessed available data collected from 1979 through 1989 and determined that, during this period, surface waters may have experienced an increase in nutrients. Inland-water data indicate that nutrient levels (nitrogen, phosphorus, or both) increased from 1979 through 1989 in the Gordon River Extension, Henderson Creek, Main Golden Gate Canal, and Faka Union Canal. Although there are less estuarine nutrient data, the data for Clam Bay reveal a steep increase in nitrogen and a slower increase in phosphorus. The sediments of numerous inland waterways contain organochlorine pesticides. Although polycyclic aromatic hydrocarbons are not widespread in estuarine sediments, they were detected among 80 percent of samples taken in Naples Bay in 1992. Among inland sediments, they are very high in the Gordon River Extension. Heavy metals are at very slightly elevated levels in urbanized estuaries, which include Naples Bay. The Golden Gate data and analysis predict "substantial population increases" for Golden Gate Estates. However, the Golden Gate data and analysis indicate that only a 4 square-mile area is served by central sewer; the same area is the only area served by central water. The Golden Gate data and analysis of the relevant drainage facilities report that the drainage basin for Golden Gate Estates is the 107 square-mile Golden Gate Basin and the 185.3 square-mile Faka Union Canal System Basin. The Faka Union Canal System Basin discharges into the Faka Union Bay, and the Golden Gate Basin appears to discharge into Naples Bay. Given the role of drainage in preserving or restoring the health of bays and estuaries, maintaining or improving natural recharge of the aquifer on which the County depends for its drinking water, and maintaining or restoring viable wetlands habitat for a variety of terrestrial and marine wildlife and plant life, and the historic exacerbation of flooding and fire by poorly planned artificial drainage facilities, DCA has proved by a preponderance of the evidence that the data and analysis do not support the Plan amendments that repealed Golden Gate Policy 2.2.3 and replaced it with Golden Gate Policy 2.1.4, so as to restrict the coverage of pre-existing restrictions on site alterations that substantially impact the drainage of South Golden Gate Estates. Issue 6 Conservation Objective 1.1 provides: By August 1, 1994, the County will complete continue with the development and implementation of a comprehensive environmental management and conservation program that will ensure that the natural resources, including species of special status, of Collier County are properly, appropriately, and effectively identified, managed, and protected. Species of special status are defined as species listed in the current "Official Lists of Endangered and Potentially Endangered Fauna and Flora in Florida," published by the Florida Game and Fresh Water Fish Commission. Conservation Policies 1.1.1 and 1.1.2 respectively provide: By August 1, 1989, appoint and establish operational procedures for Continue with using a Technical Advisory Committee to advise and assist the County in the activities involved in the development and implementation of the County Environmental Resources Management Program. By the time mandated for the adoption of land development regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto[,] incorporate the Goals, Objectives, and Policies contained within this Element into the County's land development regulations as interim environmental resources protection and management standards. Conservation Objective 1.3 provides: By August 1, 1994, complete Continue with the phased delineation, data gathering, management guidelines and implementation of the County Natural Resources Protection Areas (NRPA) program by implementing the Board- approved process for nominating potential areas for review. The purpose of Natural Resources Protection Areas will be to protect endangered or potentially endangered species (as listed in current "Official Lists of Endangered and Potentially Endangered Fauna and Flora in Florida," published by the Florida Game and Fresh Water Fish Commission) and their habitats. Conservation Policy 1.3.1 specifies the components of the NRPA program. Specific requirements include identifying NRPAs on the Future Land Use Map (FLUM), establishing development standards applicable within NRPAs to maintain functioning natural resources and restore or mitigate natural resources within NRPAs that are already degraded, identifying an NRPA review process, and deferring development within NRPAs through purchase, tax incentives, and transfer of development rights. Conservation Appendix D, which is part of the data and analysis, is devoted to Natural Resource Protection Areas (NRPAs). The issue is not what the County did or did not provide DCA during the review and adoption process. This historical fact is superseded by the opportunity presented to both sides to present data and analysis at the de novo hearing. Conservation Appendix D states that the Board of County Commissioners approved on March 1, 1994, a process for identifying NRPAs and establishing management plans for NRPAs. The process requires initial Board approval before the process commences. Appendix D identifies 33 criteria to be considered in designating NRPAs. Nearly all of the criteria involve environmental factors. The criteria represent a comprehensive range of environmental factors. Appendix D notes that, on February 28, 1995, the Board of County Commissioners approved Clam Bay as a NRPA and directed staff to begin the preparation of a management plan for Clam Bay. Clam Bay is a wetland area within an approved development of regional impact. Clam Bay was the site of a considerable mangrove die- off in 1992 and 1995. County staff appear to believe that there is a problem with flushing and possibly high water levels, as well, so the County is seeking a permit to dredge the pass. Historically, Clam Pass was connected to Vanderbilt Pond to the north, but land development severed this connection. Clam Bay is the only NRPA that the Board of County Commissioners has designated. DCA contends that the data show that the NRPA process does not adequately protect wetlands, wildlife, and wildlife habitat. Intervenors likewise argue that the NRPA is ineffective, and the County's ineffectual implementation of the NRPA program deprives Conservation Objective 1.3 of support from the data and analysis. The issue of whether these two objectives and three policies are supported by data and analysis requires consideration of their purpose and the efficacy of the programs to be established to help attain these objectives and realize their purpose. Conservation Objective 1.1, with its policies, establishes the Environmental Resources Management Program, whose purpose is to identify, manage, and protect "properly, appropriately, and effectively" natural resources, including species of special status. Conservation Objective 1.3, with its policy, establishes the NRPA program, whose purpose is to protect endangered or potentially endangered wildlife and plant life. The broader scope of the Environmental Resources Management Program is offset by its offer of only conditional protection, as disclosed by the three quoted adverbs. The highly conditional promise of Conservation Objective 1.1 means that this objective and its policies do not require much in the way of supporting data and analysis. For this reason, DCA and Intervenors have failed to prove that Conservation Objective 1.1 and Policies 1.1.1 and 1.1.2 are not supported by data and analysis. The focus of Conservation Objective 1.3 and Policy 1.3.1 is narrower--limited to endangered species and potentially endangered species--and its promise of protection is unconditional. A fair definition of potentially endangered species is threatened species and species of special concern, so this recommended order shall use the phrase, "listed species," to describe the species covered by Conservation Objective 1.3 and Policy 1.3.1. In determining the extent to which Conservation Objective 1.3 and Policy 1.3.1 are supported by data and analysis, it is necessary to consider the County's role in providing habitat to listed species, any trends in wildlife habitat and listed species, the treatment of listed species by other Plan provisions, and the County's use of NRPAs. In 1994, the Florida Game and Fresh Water Fish Commission published Closing the Gaps in Florida's Wildlife Habitat Conservation System (Closing the Gaps). This report divides Florida into geographic regions; Southwest Florida comprises Sarasota, Charlotte, Lee, Collier, Glades, and Hendry counties. Closing the Gaps cites this region as "the most important region in Florida" in terms of "maintaining several wide-ranging species that make up an important component of wildlife diversity in Florida . . .." Closing the Gaps, page 173. Most prominent in Southwest Florida are the only stable panther population east of the Mississippi River; the only stable black bear population south of Interstate 4; the greatest populations of Audubon's crested caracara in the United States; core populations of sandhill cranes, swallow-tail kites, and burrowing owls; important foraging and nesting habitats for colonies of many species of wading birds; and favorable conditions for several species of tropical plants that are rare elsewhere in Florida. Closing the Gaps states that most of the County hosts at least seven "focal species." "Focal species" are 40 species-- many of which are listed--selected for their role as indicators of natural communities or requirement of large areas for habitat. Closing the Gaps, page 8. Although most of this area is within Big Cypress and other publicly owned lands, it extends through Golden Gate Estates and into extreme west Collier County. A land-cover map in Closing the Gaps shows that the largest contiguous area of cypress swamp occupies Golden Gate Estates. Another map depicts this area as a large area of "strategic habitat" that runs to the north and northeast to link with strategic habitat running through central Hendry County and eventually to the western half of Glades County. Closing the Gaps, page 172. "Strategic habitat" is intended to provide habitat to species "lacking adequate representation in current conservation areas." Closing the Gaps, page 7. Closing the Gaps divides Collier County into two geographic areas for more detailed analysis. One area is north of Golden Gate Estates, reaching the Lee County line. The other area is west of Fakahatchee Strand and occupies South Golden Gate Estates and the remainder of Golden Gate Estates to the north. The more northerly area consists of cypress swamp, hardwood swamp, dry prairie, and pineland and "represents one of the most important wildlife areas remaining in Florida." Closing the Gaps, page 174. This area includes Lake Trafford, which is the highest part of the County and the only area supplying relatively high, natural aquifer recharge, and provides strategic habitat for the Florida panther, Florida black bear, wood stork, and American swallow-tailed kite. The more southerly area provides strategic habitat for the Florida panther, Florida black bear, red-cockaded woodpecker, and several rare wading birds that nest elsewhere. South Golden Gate Estates provides strategic habitat for the American swallow- tailed kite, southern bald eagle, eastern indigo snake, and several plant species. Central Golden Gate Estates provides strategic habitat for the American swallow-tail kite, red- cockaded woodpecker, gopher tortoise, eastern indigo snake, and several plant species. Both the northerly and southerly areas provide the "largest contiguous blocks of high-quality habitat . . . outside of conservation areas" for Florida bears. Closing the Gaps, page The County hosts the largest black bears in Florida and one of the largest groups of bears. Closing the Gaps asserts that bear habitat in the County "appears to be of the potentially greatest importance to black bears and many other rare species." Closing the Gaps, page 62. Coastal Collier County also provides strategic habitat for numerous species, including the southern bald eagle, gopher tortoise, loggerhead turtle, least tern, snowy plover, Florida black bear (Rookery Bay), peregrine falcon (Rookery Bay and Cape Romano), yellow-crowned night heron, brown pelican, Florida burrowing owl, American oystercatcher, and Florida scrub lizard. An aquatic mammal of prominence is the West Indian manatee, which frequents the waters of the County. The greatest number of citings throughout the year are in the Faka Union Canal and around Marco Island. During the winter months, the animals congregate in the Faka Union Canal. Manatees are under considerable stress. According to Conservation data and analysis, the number of manatee deaths in the County was 71 in 1996, the last year for which data were available. This was 25 percent of the total manatee deaths recorded for the preceding 22 years and was five less than the total for the preceding five years. The other large mammal under stress is the Florida panther. In 1993, the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, Department of Environmental Protection, and National Park Service published Florida Panther Habitat Preservation Plan: South Florida Population (Panther Plan). The purpose of the Panther Plan is to identify actions to assure the long-term preservation of habitats that are essential for maintaining a self-sustaining population of panthers in South Florida. Data indicate that a minimum self- sustaining population in this area is 50 adult panthers. The reproducing South Florida panther population occupies only Collier, Dade, Hendry, and Lee Counties. Although estimates vary, approximately 30-50 adult panthers probably remain in the South Florida area. In 1990, an estimated 46 panthers (of all ages) roamed the Big Cypress basin. During the study period of 1979 through 1991, 46.9 percent of panther deaths were due to highway collisions, mostly along State Road 29 and Old Alligator Alley (State Road 84), which are both in Collier County. Range demands of the panther are substantial. Males panthers require 180-200 square miles with minimal overlap with other males. Females require 75-150 square miles and tolerate overlapping territories with other females. The vast area in public ownership represented by Big Cypress Preserve and Everglades National Park offer lower-quality habitat for the panther, which prefers drier land, as does the bear, although it is less demanding than the panther in terms of habitat type. The northern 53 percent of the South Florida panther range is in private ownership, but the higher soil fertility and forested habitat characteristic of this land allow it to accommodate over half of the adult panthers, who are healthier and more productive than their counterparts in the southern portion of the South Florida range. Partly for these reasons, the vast publicly owned lands can support only 9-22 of the adult panthers in South Florida. Publicly owned lands in the South Florida range are probably at their limit in supporting panthers. The first two recommendations of the Panther Plan are to develop "site-specific habitat preservation plans" for land south of the Caloosahatchee River, which comprises 75 percent of known panther range and contains 39 of the 41 panthers studied between 1981 and 1991, and for land north of the Caloosahatchee River, which offers superior habitat that may in the future become more available for settlement by panthers. Other Plan provisions address wildlife and wildlife habitat. Conservation Policy 1.3.2 is to continue management guidelines for wildlife and wildlife habitat, but the guidelines are deferred and relegated to the land development regulations. Moreover, a County witness conceded at the hearing that staff was having difficult preparing these management guidelines. Conservation Objective 6.1 is to prepare development standards for all important native habitats, but the Plan Amendments extended the deadline for doing so another six years, until June 1, 1998, and largely deferred and relegated to the land development regulations. However, Conservation Objective 6.1 incorporates Policies 6.4.6 and 6.4.7 until the County prepares the development standards. For new residential developments greater than 2.5 acres in the Coastal Area or 20 acres in the coastal urban area, Policy 6.4.6 requires the retention of a minimum percentage of viable, naturally functioning native habitat. However, this policy is undermined by vagueness concerning "Coastal Area," "coastal urban area," and "viable, naturally functioning native habitat"; the emphasis on the preservation of sample habitats, rather than contiguous wildlife habitat; and the County's practice of allowing compliance with this requirement through total landclearing following by replanting. For all new development, Policy 6.4.7 addresses contiguous habitat, but only by encouraging, not requiring, preservation, and without specifying a minimum area to be preserved. Conservation Policy 7.2 is to maintain the average annual number of deaths of manatees from boat collisions at 3.2, although this is a small fraction of the total annual manatee deaths. Conservation Policy 7.3.3 is to prepare management guidelines in the land development regulations to inform landowners of the proper ways to reduce disturbances to red- cockaded woodpeckers, Florida panthers, other listed species, eagle nests, and wood stork habitat. Pending the preparation of these land development regulations, Conservation Policy 7.3.4 is for the County to "evaluate and apply applicable recommendations" of two governmental agencies regarding the protection of listed species. Lastly, the County will designate unspecified portions of known panther habitat as Areas of Environmental Concern on the FLUM. There is no explanation in the record why the County has designated only Clam Pass as an NRPA. However, the record does not support an inference that the NRPA program has had any effect whatsoever in addressing the needs of wildlife and habitat. In 1993 and 1994, County staff recommended 10-12 areas as NRPAs, including Belle Meade, Cap Key Strand (which runs from Immokalee and Lake Trafford south to the Florida Panther National Wildlife Refuge), and South Golden Gate Estates. These areas, which the County declined to designate as NRPAs, provide considerably more wildlife habitat and more wildlife habitat of higher quality than does Clam Pass, whose designation seems to reflect a reaction to mangrove dieoffs and possibly water quantity, but not habitat or even water quality. Considering the County's role in providing crucial wildlife habitat to listed species, weak Plan provisions concerning wildlife and wildlife habitat, and ineffective utilization of the NRPA program (at least for the purpose of protecting wildlife habitat), DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 1.3 and Policy 1.3.1 are not support by data and analysis. Issue 7 Conservation Objective 12.1 is: Continue to Eencourage the undertaking of activities necessary to attain maintain by 1994, hurricane evacuation clearance time for a Category 3 storm at a maximum of 28 hours as defined by the 1987 1996 Southwest Florida Regional Planning Council Hurricane Plan Evacuation Study Update, and by 1999, 27.2 hours. Activities will include on-site sheltering for mobile home developments, increased shelter space, and maintenance of equal or lower densities of the Category 1 hurricane vulnerability zone Coastal high hazard area in the land use plan. Conservation Policy 12.1.1 states: Land use plan amendments in the Category 1 hurricane vulnerability zone Coastal high hazard area shall only be considered if such increases in densities provide appropriate mitigation to reduce the impacts of hurricane evacuation times. shall be re-evaluated within three years and may change to a density level consistent with the Future Land Use Element. Conservation Objective 12.1 is not to maintain or reduce evacuation times; it is not even to encourage the maintenance of evacuation times. Objective 12.1 merely encourages activities that are necessary to maintain evacuation times. Additionally, Conservation Objective 12.1 refers to the misdefined Coastal High Hazard Area, as discussed in Issue 8. These two flaws in Conservation Objective 12.1 mean that this objective has not responded to the Conservation data and analysis, including Conservation Appendix E, which discusses hurricane evacuation times. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 12.1 and Policy 12.1.1 are not supported by data and analysis and Objective 12.1 is inconsistent with a criterion to maintain or reduce hurricane evacuation times. Issues 8 and 15 Following amendment, Conservation Policy 12.2.5 defines the Coastal High Hazard Area as the area "lying within the Category 1 Evacuation Zone as determined by the Emergency Management Director." The County amended the FLUM to depict the coastal high hazard area, as defined in Conservation Policy 12.2.5. The "Category 1 Evacuation Zone as determined by the Emergency Management Director" omits areas within the category 1 hurricane zone, as established in the 1996 Southwest Florida Regional Planning Council Hurricane Evacuation Study Update, which is the regional hurricane evacuation study applicable to the County. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Policy 12.2.5 and the conforming FLUM amendment reflect a Coastal High Hazard Area that is not the category 1 hurricane zone, as established by the regional hurricane evacuation study applicable to the County. Issue 9 Conservation Objective 6.3 states: A portion of the viable, naturally functioning transitional zone wetlands defined by State and Federal permitting requirements shall be preserved in any new non-agricultural development unless otherwise mitigated through the DER State and the ACOE permitting process and approved by the County. Conservation Objective 6.3 does not state what portion of the transitional zone wetlands shall be preserved, nor does it define "viable, naturally functioning transitional zone wetlands." Each of these concepts--viable, naturally functioning, and transitional zone--requires definition. There is thus no way to evaluate the success of the policies under the objective or that attainment of this objective marks progress toward a stated goal. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 6.3 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. Issue 10 Conservation Objective 7.3 states: By January 1, 1992, The County shall continue to develop and implement programs for protecting fisheries and other animal wildlife by including measures for protection and/or relocation of endangered, threatened, or species of special concern of status. The effect of the amendment of Conservation Objective 7.3 is to remove the deadline by which the County was to develop and implement programs to protect wildlife, including listed species. There is thus no way to evaluate the success of the policies under this objective or that attainment of this objective marks progress toward a stated goal. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 7.3 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. Issues 11, 12, 13, and 14 Conservation Objective 9.4 is: By September 30, 1989, the County shall establish The County shall implement the existing a local storage tank compliance program to protect ground and surface water quality including site inspections and information transfer. Conservation Objective 9.5 is: By August 31, 1989, the The County shall adopt implement construction, pretreatment, monitoring, and effluent limit requirements of the Collier County Ground Water Protection an Ordinance regulating the use of septic tanks serving industrial and manufacturing activities. Conservation Objective 10.6 is: By August 1, 1990, tThe County shall continue to implement the Coastal Barrier and Beach System Management Program by conserving the habitats, species, natural shoreline and dune systems contained within the County coastal zone. FLUE Policy 3.1.d is: Protect potable water wellfields and aquifer recharge areas. This shall be accomplished through the creation and implementation of a wellfield protection ordinance. The ordinance shall establish cones of influence based on groundwater travel times, restrict land uses and activities within the cones of influence and establish development standards for those activities beyond the cones of influence which may endanger the wellfields and aquifer recharge areas based on their potential for pollution. The Groundwater Protection Ordinance shall be implemented to protect existing and future wellfields, natural aquifer recharge areas and groundwater resources through standards for development involving the use, storage, generation and disposal of hazardous waste products, disposal of sewage and effluent, stormwater management, earthmining, petroleum exploration, solid waste and other related aspects of land use and development within the mapped wellfield protection zones. Groundwater Policies 1.2.1 and 1.2.2 are: The [Groundwater Protection] Ordinance [to be adopted by August 1, 1989, under Groundwater Objective 1.2] will address both existing and projected future land use and surface activities. Apply action criteria specified in the Collier County Ground Water Protection Ordinance to both existing and future regulated development according to procedures specified in the Ordinance to protect the County's ground water resources. The [Groundwater Protection] Ordinance will continue Apply criteria for ground water protection specified in enforcement procedures specified in the Ordinance to provide an appropriate level of protection to sensitive recharge areas. Conservation Objective 9.4 promises the implementation of a storage tank program that is contained in the land development regulations, which are not incorporated by reference into the Plan. Because these land development regulations are not themselves subject to the compliance determinations that are the subject of this case, Conservation Objective 9.4 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. This deferral and relegation to the land development regulations leaves no way of evaluating the success of the policies under this objective or that attainment of this objective marks progress toward a stated goal. The same deficiencies characterize Conservation Objectives 9.5 and 10.6, FLUE Policy 3.1.3, and Groundwater Policies 1.2.1 and 1.2.2, except that, for the policies, this deferral and relegation to the land development regulations leaves no way of identifying the way in which the County will conduct programs and activities to achieve identified goals. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objectives 9.4, 9.5, and 10.6, are not specific, measurable, intermediate ends that are achievable and mark progress toward a goal. DCA and Intervenors have proved by a preponderance of the evidence that FLUE Policy 3.1.d and Groundwater Policies 1.2.1 and 1.2.2 do not identify the way in which the County will conduct programs and activities to achieve identified goals. Issue 15 Section 187.201, Florida Statutes, sets out the State comprehensive plan. Section 187.201(8)(b)2 is to "[I]dentify and protect the functions of water recharge areas and provide incentives for their conservation." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Groundwater Objective 1.2 and Policies 1.2.1-1.2.4 and FLUE Policy 3.1.d. Section 187.201(8)(b)9 is to "[p]rotect aquifers from depletion and contamination through appropriate regulatory programs and through incentives." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 9.5, Groundwater Objective 1.2 and Policies 1.2.1-1.2.4, and FLUE Policy 3.1.d. Section 187.201(8)(b)10 is to "[p]rotect surface and groundwater quality and quantity in the state." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 6.3, FLUE Policy 3.1.d, Groundwater Objective 1.2 and Policies 1.2.1-1.2.4, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(8)(b)12 is to "[e]liminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 9.5, FLUE Policy 3.1.d, Groundwater Policies 1.2.1 and 1.2.2, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(9)(b)4 is to "[p]rotect coastal resources, marine resources, and dune systems from the adverse effects of development." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 6.3, 7.3, 9.4, 9.5, and 10.6 and Policy 12.2.5; FLUE Policy 3.1.d; Drainage Policy 1.1.2; and Golden Gate Policy 2.1.4. Section 187.201(9)(b)9 is to prohibit development that disturbs coastal dune systems. In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 10.6 and Policy 12.2.5. Section 187.201(10)(b)1 to "[c]onserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3, and 9.5 and Policy 1.3.1; Drainage Policy 1.1.2; and Golden Gate Policy 2.1.4. Section 187.201(10)(b)3 is to "[p]rohibit the destruction of endangered species and protect their habitats." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3, 9.5, and 10.6 and Policy 1.3.1; and Golden Gate Policy 2.1.4. Section 187.201(10)(b)7 is to "[p]rotect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 6.3 and 9.5, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(26)(b)7 is to ensure the development of local government comprehensive plans that implement and reflect state goals and policies and that address issues of particular concern to a region. In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3 10.6, and 12.1 and Policies 1.3.1, 12.1.1, and 12.2.5; Golden Gate Policy 2.1.4; and ICE Policy 1.2.6.
Recommendation It is RECOMMENDED that the Administration Commission enter a final order determining that the Plan Amendments are not in compliance. DONE AND ENTERED this 19th day of March, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1999. COPIES FURNISHED: Shaw P. Stiller Colin M. Roopnarine Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Thomas W. Reese 2951 61st Avenue South Saint Petersburg, Florida 33712 Marjorie M. Student Rodney C. Wade Assistant County Attorneys 3301 East Tamiami Trail Naples, Florida 34112 Richard D. Yovanovich Roetzel & Andress 850 Park Shore Drive Naples, Florida 34103 Donna Arduin, Secretary Executive Office of the Governor 1601 Capitol Tallahassee, Florida 32399-0001 David Schwartz, Esquire Executive Office of the Governor 209 Capitol Tallahassee, Florida 32399-0001
The Issue The issue for determination is whether Petitioner is liable for the costs and expenses incurred by Respondent in responding to a pollutant discharge, occurring on November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and for damages to natural resources resulting from the pollutant discharge.
Findings Of Fact On November 6, 1992, a DC-7 airplane crashed off the Atlantic Coast of Florida, more particularly, 100 yards from John Lloyd State Park, and one quarter of a mile north of Dania Pier in Dania, Florida. The DC-7 was a chartered cargo airplane and had departed from Miami International Airport. The DC-7 was chartered from Claudio Castillo by Miguel Delpino, United States General Manager of Aerochago Airlines, to carry cargo for Aerochago Airlines. Even though Aerochago Airlines owned aircraft, its aircraft was unavailable due to maintenance work being performed. During the flight from Miami International Airport, the DC-7 developed engine trouble, i.e., two of its engines failed. The aircraft began to lose altitude. In an attempt to regain altitude, the captain of the aircraft dumped 3,000 gallons of aviation fuel. However, the DC-7 failed to regain altitude and crashed. Remaining on the crashed aircraft were 3,000 gallons of aviation fuel and 150 gallons of motor oil. When the DC-7 crashed, only the crew and two passengers were on board. One of the passengers was Mr. Castillo. On the same day of the crash, the Florida Marine Patrol (FMP) of the Department of Natural Resources, now the Department of Environmental Protection (DEP), arrived at the crash scene at 3:20 a.m. and investigated the crash. The DEP had four employees investigating the crash: three FMP officers and one employee from the Office of Coastal Protection. The remaining aviation fuel and motor oil in the crashed DC-7 was discharging into the coastal waters. The DEP employees attempted to abate the discharge. The equipment necessary for the employees' investigation of the crash and abatement of the discharge and the cost for the equipment were the following: (a) a DEP vehicle at a cost of $7.00; (b) a twin engine vessel at a cost of $120.00; (c) an underwater sealant kit at a cost of $16.66; (d) scuba tanks at a cost of $9.00; and (e) photographs at a cost of $24.00. The total hours expended by DEP's four employees were 36 hours, at a cost of $685.84. Due to the DC-7 leaking aviation fuel and motor oil into Florida's coastal waters, removal of the aircraft from the Atlantic Ocean was necessary. DEP contracted with Resolve Towing and Salvage (RTS) to remove the DC-7. RTS is a discharge cleanup organization approved by DEP. RTS' contractual responsibilities included removal of the entire DC-7 aircraft and all debris within 100 yards of the center of the aircraft; disposal of the aircraft; plugging the engines to help stop the leakage; and removal and delivery of the engines which failed to the National Transportation Safety Board (NTSB) and the Federal Aviation Authority (FAA). Because the submerged DC-7 was located in an environmentally sensitive coral and sea-plant area, RTS was required to use extreme care in removing the aircraft. The contractual cost was fixed at $34,000.00 A DEP employee, Kent Reetz, was at the scene of the crash during RTS' cleanup. His responsibility was to monitor the removal of the DC-7 by RTS and to ensure that the aircraft's removal was in compliance with DEP's standards. During the removal of the DC-7 from the water, the fuselage ruptured, scattering debris which was dangerous to the public and to the coral and sea-plants. DEP determined that RTS was not responsible for the fuselage rupturing, but that the rupture was caused by several storms, prior to the aircraft's removal, and by the aircraft being submerged for an extended period in salt water. DEP contracted with RTS to remove the dangerous debris emitted when the fuselage ruptured. The contractual cost was fixed at $9,050.00 The total contractual cost between DEP and RTS was $43,050.00. DEP paid RTS from the Coastal Protection Trust Fund. In responding to the pollutant discharge, DEP incurred a total cost of $43,912.50. DEP assessed damages to the natural resources based upon the amount of pollutants discharged which were 3,000 gallons of aviation fuel and 150 gallons of motor oil. Using the statutory formula, DEP assessed damages to the natural resources in the amount of $57,898.72. Based upon the costs incurred by DEP in responding to the pollutant discharge in the amount of $43,912.50 and the damages to the natural resources in the amount of $57,898.72, DEP sought reimbursement and compensation from Mr. Castillo in the total amount of $101,811.22. DEP invoiced Mr. Castillo for reimbursement of the costs and for compensation for the damages. DEP provided Mr. Castillo with detailed and itemized expense documents for the costs that it had incurred in responding to the pollutant discharge. The documents showed the expenses incurred, what each expense represented, and the formula for computing each expense. Further, DEP provided Mr. Castillo with a document showing the amount of the damages to the natural resources, the formula for computing the damages, and how the damages were computed. The charter of November 6, 1992, was not the first time that Mr. Delpino had chartered the same DC-7 from Mr. Castillo. Prior to and, again, at the previous charter, Mr. Castillo represented to Mr. Delpino that he, Mr. Castillo, was the owner of the DC-7. The owner of a chartered aircraft is responsible for obtaining the aircraft's crew and insurance and for maintaining the aircraft. For the previous charter, Mr. Castillo was responsible for obtaining the DC-7's crew and the insurance and for maintaining the aircraft. Mr. Delpino had no reason to expect the charter for November 6, 1992, to be any different. Furthermore, Mr. Castillo did not inform Mr. Delpino that the responsibilities would be different. For the present charter, as before, Mr. Castillo handled all matters relating to the crew, insurance, and maintenance. Regarding the insurance, Mr. Castillo presented to Mr. Delpino an insurance certificate which, after the crash, was discovered to be false. Also, regarding maintenance, prior to the crash, the two engines which failed were to be removed and repaired, but, although they were removed, they were returned without being repaired. Mr. Castillo was the owner of the DC-7. Also, the crash of the DC-7 was investigated by several federal governmental agencies, including the FAA, the U.S. Coast Guard, and the NTSB. Both the Coast Guard and the NTSB issued reports on the crash, which identified Mr. Castillo as the owner of the DC-7. Mr. Castillo was responsible for the discharge of the 3,000 gallons of aviation fuel and 150 gallons of motor oil from the DC-7 into Florida's coastal waters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection (DEP) enter a final order assessing Claudio Castillo $43,912.50 for costs related to DEP responding to the pollutant discharge on November 6, 1992, at Florida's coastal waters off John Lloyd State Park, Dania, Florida, and $57,898.72 for damages to natural resources resulting from the pollutant discharge--all totaling $101,811.22. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997.
Findings Of Fact Hurricane Andrew and its Aftermath Hurricane Andrew struck Dade County on August 24, 1992. It was a Category 4 hurricane, packing sustained winds of between 131 and 155 miles per hour with higher gusts particularly in vertical swirls along the eye wall and microbursts, which are downbursts associated with thunderstorms imbedded within the hurricane. Andrew's eye crossed Elliott Key and made landfall on the Florida peninsula near the Homestead Air Force Base. Andrew tracked in an approximately westerly direction across Dade County, its eye passing north of Homestead. Property damage from Andrew caused approximately $18 billion of insurance claims. Several personal lines residential property and casualty insurance companies went bankrupt. The Legislature authorized the Florida Insurance Guaranty Association (FIGA) to float almost $500 million of bonds to finance payment of claims to insureds whose insurers could not pay. In addition to the companies that were forced out of business, several others took steps to reduce their exposure in Florida. In order to secure coverage for Floridians, the Legislature created the Florida Property and Casualty Joint Underwriting Assocation (the JUA). Eight insurers service the JUA, and the JUA's losses are underwritten by all of the approximately 185 insurance companies writing personal lines residential property and casualty insurance in Florida. Each company underwrites a share of the losses in proportion to their share of the business written in the voluntary market in Florida. In the aggregate, these companies have between $30 billion and $40 billion of policyholder surplus for the payment of claims against the JUA. Insurers continued to notify the Department of their intention to reduce their risks in Florida. By May 19, 1993, the Department had in its possession notifications from insurers of intent to cancel or nonrenew approximately 800,000 policies. The Department was concerned that, since each company writing business in the voluntary market underwrites a share of JUA losses in proportion to the company's share of the voluntary market, a vicious cycle was in operation: as more policies in the voluntary market were cancelled or nonrenewed, and assigned to the the JUA, the share of a company's exposure to JUA risk increased to the extent that the company did not also cancel or nonrenew, creating an incentive to cancel or nonrenew policies on the voluntary market that was difficult to control. On May 19, 1993, the Department of Insurance promulgated emergency rule 4 ER93-18 (ER 18). ER 18 recited as some of the Department's specific reasons for finding an immediate danger to the public health, safety or welfare: 4. No change has occurred in the risk characteristics of Florida policyholders. Although Hurricane Andrew was devastating to all parties involved, major hurricanes are random events and the risk of another major hurricane making landfall in a heavily populated area of Florida is no greater now than all of the years in which premiums were charged and no hurricanse occurred. According to insurance industry data, there have been 10 hurricanes in Florida with maximum wind speeds over 135 miles per hour [Andrew intensity or greater] from 1871 to 1992, with an additional 13 hurricanes making land fall in Florida during this period with maximum wind speeds of 116 to 135 miles per hour [approximately Category 3]. Thus, it is clear that the claims arising from Hurricane Andrew are in reality the impetus for proposed action by insurers. * * * 7. . . .. Furthermore, the FRPCJUA was designedto insure people whose insurer became insolvent or who are new homeowners seeking coverage. It was not designed to additionally process and insure hundreds of thousands of people arbitrarily abandoned by their insurers purely due to fear of hurricane exposure. In other words, the FRPCJUA was not designed as a "dumping ground" for insurers. * * * 9. Until empirical and scientifically verifiable hurricane projections are demonstrated which proves an insurer's solvency is jeopardized, the burden should be borne by insurers through cancellation or nonrenewal. Hurricane season begins June 1. There is immediate need to maintain the status quo to assure consumer protection from unlawful behavior. ER 18(3) imposed a 90-day moratorium on cancellations and non-renewals of personal lines residential property insurance on the basis of risk of hurricane claims. ER 18(4) provided: "This rule shall not apply if the insurer can affirmatively demonstrate to the Department that the proposed cancellation or nonrenewal is necessary for the insurer to avoid an unreasonable risk of insolvency." The PRUPAC Application The Prudential Property and Casualty Insurance Company of Indiana (PRUPAC) was one of the companies that had notified the Department that it wanted to initiate a plan to reduce its risks in Florida. It had a relatively high concentration of risk in Dade County at the time Andrew struck and was hard hit financially. It incurred approximately $1.3 billion of gross covered losses as a result of Andrew. Even after PRUPAC utilized all of its available reinsurance benefits, the losses far exceeded PRUPAC's entire policyholder surplus of approximately $578 million. In order to pay the remaining claims and restore the company's surplus to approximately $671 million at the end of 1992, PRUPAC's parent companies infused $900 million of capital into PRUPAC. The day after ER 18 went into effect, PRUPAC applied for an exemption from the moratorium under ER 18(4). PRUPAC's application asserted that, if another storm of approximately Andrew's intensity made landfall just north of Andrew's landfall and followed a slightly more northerly track, the company's gross losses would be approximately $1.5 billion. It called this its "probable maximum loss" from such an occurrence. The application requested an exemption from the moratorium in order to proceed with a plan to reduce its losses from such a storm event to approximately $400 million by nonrenewing policies, primarily in Dade and Broward counties but also to a lesser extent in some other parts of the state. PRUPAC proposed to initiate its plan immediately so that, by the end of 1993, it would have nonrenewed approximately 25,000 policies in Dade and Broward counties and approximately 5,000 policies elsewhere in the state. Essentially these nonrenewals would effect a reduction in the company's alleged PML in Dade and Broward counties from $1.3 billion to $400 million. (Other features of PRUPAC's plan are not relevant to this case.) Under the plan proposed its application, PRUPAC would nonrenew approximately $3 million of exposure per day. PRUPAC based its application on a policyholder surplus of $700 million, rounded up from the 1992 year end figure of $671 million. As of June 30, 1993, PRUPAC's surplus stood at approximately $657 million. The Denial Letter The Department's August 10, 1993, denial letter concluded that "the proposed cancellations and nonrenewals are not necessary to avoid an unreasonable risk of insolvency." It also invited PRUPAC to resubmit a proposal in which the planned cancellations and nonrenewals are designed to reduce your exposure to that amount which, after calculating the effects of reinsurance, would reduce Prupac's probable maximum loss to an amount not in excess of its total surplus. In making any such subsequent proposal the following shall be considered: A plan for cancellation and nonrenewal that minimizes the market disruption and difficulty for Prupac's insureds; Availability of capital from the Prudential Insurance Company of America (the Prudential). If your proposal limits Prupac's ability to pay claims to its own resources, with no contribution from the Prudential, then Prupac shall provide verification that all sales, solicitation and advertising for Prupac in this state distinguish, in clear and unambiguous terms, between Prupac and the Prudential, and that none of the foregoing contains any suggestion that the Prudential's capital backs up Prupac's policies. The denial letter did not specifically mention that PRUPAC did not prove the likelihood of occurrence of the storm event on which its "probable maximum loss" was predicated. The Department contends that this concern was "inherent" in its consideration of PRUPAC's and all applications for exemptions from the moratorium. See Finding 25. Its ER 20(2)(b) certainly is strong evidence that the Department's position in this regard is not of recent vintage. Indeed, at least from the promulgation ER 20 on June 4, 1993, the Department consistently has contended that this issue should be considered in all exemption applications. The Department persuasively explained that it did not specifically mention PRUPAC's failure to prove the likelihood of occurrence of the storm event on which PRUPAC's application was based because the Department considered the general denial, coupled with the specifically-mentioned grounds for denial, to be sufficient. It denied having any intention to waive consideration of the likelihood of occurrence of the storm event on which PRUPAC's application was based. Similarly, the denial letter did not mention anything about the tax consequences of hurricane losses. However, the tax consequences of hurricane losses was discussed during the June 3, 1993, public hearing. (Pet. Ex. 8, p. 103). Again, the Department explained that the general denial, coupled with the specifically-mentioned grounds for denial, was considered to be sufficient. The Department denied having any intention to waive consideration of the the tax consequences of hurricane losses. "Probable Maximum Loss" and Related Concepts The concept of "probable maximum loss" is widely, though not universally, known in the property and casualty insurance business nationwide. It is a concept utilized to evaluate an insurer's concentration of risk. Generally, concentration of risk is evaluated by reference to the "probable maximum loss" a company should expect to incur if a natural catastrophe--such as a hurricane, earthquake or flood--of a given magnitude occurs in the area under consideration. In such an evaluation, the industry commonly assumes an event that approximates the most costly catastrophe that has occurred in the area. When it comes to evaluating concentration of risk, the industry has a general understanding of what is usually considered to be an "unreasonable risk of insolvency." It is when the "probable maximum loss" is more than 10-15 percent of the insurance company's surplus. This concept takes into account (1) that the risk being assessed is only one of many catastrophic risks to which an insurer is exposed and (2) that the company's surplus will be called to respond to all of its losses, no matter where in the nation they arise or how. PRUPAC's share of the personal lines residential property and casualty market in Dade and Broward counties is higher than its share anywhere else in Florida or anywhere in the country. It has approximately 8 percent of the market in those counties. Its overall share of the market in Florida is only 3 percent, and its share of the market nationwide is less. Given PRUPAC's current concentration of risk, if another storm of approximately Andrew's intensity made landfall just north of Andrew's landfall and followed a slightly more northerly track, PRUPAC's losses would be approximately $1.4 billion. Using computer modeling, the Natural Hazards Research Service projected that PRUPAC's losses from such an occurrence would total approximately $1.28 billion. (This is not surprising since the actual losses from Andrew were approximately $1.3 billion.) PRUPAC reasonably added a factor of ten percent for escalation of building costs, bringing the figure to approximately $1.4 billion. But the eight percent factor it added for an increased number of policies, bringing the figure to approximately $1.5 billion, was unreasonable since PRUPAC had no intention of increasing its policies in Florida. In utilizing the concept "probable maximum loss" in the context of evaluating concentration of risk, the likelihood of occurrence of the assumed catastrophic event clearly is not considered. In certain insurance contexts other than evaluation of concentration of risk, the concept "probable maximum loss" equates to "maximum probable loss" or "the worst loss that is likely to occur." These concepts come into play in rate-making and usually are not applied to catastrophic risks. Another related concept is "probability of ruin." This concept is similar to the rate-making concept of "maximum probable loss" in that the likelihood of the actual occurrence of the risk is considered. The related concepts of "maximum probable loss" and "probability of ruin" also are used by risk managers in evaluating how to fund retained risk or how much insurance to purchase. The Department takes the position "probable maximum loss," as used in the moratorium statute, means "maximum probable loss" and that it contemplates an evaluation of the likelihood of the actual occurrence of the risk being considered. The Department also contends that, like its concept of "probable maximum loss," in the context of the moratorium statute, "unreasonable risk of insolvency" means that insolvency is not just a possible outcome, but is in fact the probable outcome, of a denial of exemption. As the Department would apply the term to the moratorium statute, loss scenarios that depend for their fulfillment upon the occurrence of statistically unlikely events would not constitute an "unreasonable risk of insolvency." It is clear that "insolvency" generally is known to mean an excess of liabilities over assets. Accordingly, the Department's position is that, to prove an "unreasonable risk of insolvency," an insurer not only would have to prove the likelihood of the occurrence of the event that would result in the "probable maximum loss," but also would have to prove that the losses would approximate the company's total surplus. The Department granted five of the 30 applications for exemption that it considered. Only one of the five included evidence on the probability of the occurrence of the storm event that allegedly would result in an unreasonable risk of insolvency, and that company alleged that there probably would not be another "Andrew" in another thousand years. But all five applications were filed by financially weak applicants. The Department concluded that, in the case of those five, "virtually any hurricane loss would have rendered the company unable to pay claims." Four of the five are now in receivership or are being seriously evaluated for a possible receivership action. Storm Probabilities The southeast Florida coast is the Florida (and United States) coastline most vulnerable to hurricanes. Yet the evidence was that, during the 122 years of recorded history, from 1871 through 1992, only seven hurricanes of Category 4 intensity (Andrew-like intensity) or greater have made "direct hits" on or "near misses" of Dade or Broward counties. (There were six Category 4 storms to do so, and one Category 5 storm to do so. There were 14 storms of unknown intensity to do so, but it is unlikely that they were Category 4 or Category 5 storms.) It is very unlikely that a Category 4 or 5 storm will make a direct hit on, or a near miss of, Dade or Broward county during any two consecutive hurricane seasons. Although there have been very few hurricanes of Andrew-like intensity to hit or nearly miss Dade and Broward counties, there were a total of 46 hurricanes, of all intensity levels, to do so from 1871 through 1992. It can be said that, given those odds, it is likely that one will do so during any two consecutive hurricane seasons. (In addition, there have been 35 tropical storms to hit or nearly miss Dade and Broward counties during the past 122 years.) PRUPAC's Reinsurance PRUPAC has reinsurance that would be payable in the event of another hurricane like Andrew. Since Andrew, reinsurance has become more difficult to obtain. PRUPAC has been able to obtain approximately $155 million of reinsurance coverage. None of the reinsurance coverage is payable until after PRUPAC pays approximately $35 million of retained risk. Then, only approximately 88 percent of the $155 million, or $136.4 million, is payable as reinsurance benefits to PRUPAC; the rest of the risk retained by PRUPAC. It is reasonable to round the reinsurance benefit to $140 million for purposes of comparing it to PRUPAC's losses in the event of another hurricane. In addition, PRUPAC is obligated to reinstate the coverage for the rest of the coverage year by repayment of a premium. The reinstatement premium would cost PRUPAC approximately $10 million. PRUPAC also has approximately $200 million of what is known as "funded reinsurance" or "funded cover." Under such a contract, PRUPAC pays a premium of approximately 20 percent of the face amount of the "cover." Approximately 20 percent of the premium represents the margin retained by the "reinsurer." The rest goes into an "experience fund." If a claim is made, PRUPAC would have to pay another premium to reinstate the coverage. The "reinsurer" would then be obligated to pay the claim. But, under the terms of the "funded cover," PRUPAC would have to contract to repay the "reinsurer" over the next four years. "Funded reinsurance" or "funded cover" does not shift any risk away from PRUPAC; it just extends PRUPAC a line of credit to pay claims. The Financial Accounting Standards Board recently ruled that "funded cover" does not qualify as reinsurance for purposes of evaluating an insurer's financial condition and solvency. A "Piece of the Rock"--The Prudential PRUPAC is owned by Pruco, a "downstream" holding company of The Prudential Life Insurance Company (the Prudential). The Prudential is a mutual life insurance company that is owned by its policyholders. It has approximately $10 billion of policyholder surplus, making it one of the largest insurance companies in the world. It makes investments on behalf of its policyholders, including its investment in PRUPAC, through Pruco. At PRUPAC's inception approximately 20 years ago, the Prudential capitalized PRUPAC with an initial investment of approximately $450 million. Until the aftermath of Andrew, relatively little in the way of money has been exchanged between the companies. The Prudential is a New Jersey company. The laws of New Jersey control the amount of money The Prudential can invest in a subsidiary such as PRUPAC. PRUPAC is domiciled in Indiana, and capital infusions from The Prudential to PRUPAC also would be subject to the Indiana insurance code and to the regulation of the Indiana insurance commissioner. Assuming The Prudential chose to do so, the evidence did not establish how much additional capital it could infuse into PRUPAC within the bounds of those constraints. Tax Consequences of Losses PRUPAC apparently got a federal income tax credit of approximately $300 million as a result of its $1.3 billion of losses to Andrew. (Pet. Ex. 8, p. 103). However, there also was evidence that PRUPAC was entitled to a credit in the amount of one-third of its $1.3 billion of hurricane losses. (Pet. Ex. 8, p. 102.) It is not clear why PRUPAC's actual credit was less than one-third of PRUPAC's actual losses from Andrew, and there was no further evidence on how the tax credit is calculated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order granting PRUPAC's application, subject to the impact of the new legislation on the subject. RECOMMENDED this 12th day of November, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5262 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. "1.5" is rejected; it was 1.4. and incorporated. Accepted and incorporated. "Much" is rejected as not proven. Otherwise, accepted but not necessary. "260" is rejected as not proven. (It does not account for tax credits.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 6.-10. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the Department's General Counsel "instructed" PRUPAC as to what its application should be or contain. Accepted that the Department's General Counsel offered procedural guidance on how to apply and accepted as to the contents of the application; those items are incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. (All five were in dire financial straits. Virtually any hurricane losses would lead to financial ruin.) 13.-14. Accepted and incorporated. First three sentences, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as to (2) and (3); accepted as to the rest. Incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. First two sentences, accepted and incorporated to the extent not subordinate or unnecessary. Third sentence, rejected as to (2) and (3); accepted as to the rest. Incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as not proven and as contrary to the findings of fact and the greater weight of the evidence. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven and as contrary to the findings of fact and the greater weight of the evidence. There are probabilities based on historical fact. 20.-22. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven as to "III"; otherwise, accepted and incorporated. "More than double" is rejected as not proven. (Accepted that the Department has stated that it would be more, but subordinate and unnecessary.) "Mere brush" is rejected as not proven. (Reference was being made to a storm that tracked north to south just off the Atlantic coast, thereby ravaging the entire coastline.) 26.-27. Accepted and incorporated. (This is done for purposes of evaluating concentration of catastrophic risk.) 28. Accepted but subordinate and unnecessary. 29.-30. Rejected as irrelevant. Regardless of how "extraordinary" they actually were, the "extraordinary circumstances" are the same ones that led the Legislature to enact the moratorium statute. PRUPAC's argument actually is that the facts were different than the Legislature thought. This may have been an argument to make in lobbying against the enactment of legislation, but it is not a good argument for PRUPAC's interpretation of the statute that has been enacted. Rejected. As to the first sentence, such evidence was offered. Besides, the burden of proof was on PRUPAC. The rest is rejected as being conclusion of law. Rejected. As to the first two sentences, such inquiries were made and such evidence was offered. Besides, the burden of proof was on PRUPAC. As for "considering" those matters, this is a de novo proceeding. See Conclusion of Law 48. The Department will not complete its "consideration" of them until it reviews this Recommended Order and enters and Final Order. Last sentence, accepted and incorporated. Penultimate sentence, rejected as being conclusion of law. The rest is rejected as contrary to the evidence. Also, the burden of proof was on PRUPAC. 34.-35. Accepted and incorporated. 36. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-2. Accepted and incorporated. 3. "Compelled by a virtual tide" is rejected as argument. Also rejected that the legislative intent was "that such policies not be terminated." 4.-10. Accepted and incorporated. Rejected as contrary to facts found. Except for the amount, accepted and incorporated. Accepted but subordinate and unnecessary. Accepted and incorporated. 15.-17. Accepted but subordinate and unnecessary. Accepted and incorporated. Rejected that the reinsurance actually was $300 million. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 20.-21. Accepted as accurately reciting his testimony. Rejected as to being the legislative intent. 22.-24. Accepted. Subordinate to facts found. Accepted but subordinate and unnecessary. Accepted and incorporated. Accepted and incorporated. However, subject to applicable laws. 28.-30. Accepted. Subordinate to some of the facts found. Otherwise, unnecessary. 31.-32. Accepted and incorporated. Accepted but subordinate and unnecessary. Accepted and incorporated. 35.-38. Accepted and incorporated to the extent not subordinate or unnecessary. 39.-41. Accepted to the extent subordinate to facts found. Rejected as not supported by the evidence. Rejected as contrary to facts found and contrary to the greater weight of the evidence. Rejected as contrary to facts found. Rejected as generally subordinate to facts contrary to those found and as being argument. Accepted and incorporated that Bernstein's testimony did not "take into account" the Legislature's perceptions. It was from the standpoint of evaluation concentration of catastrophic risk. But it was concluded that the Legislature meant for the words it chose to have the same meaning. Accepted to the extent facts and not conclusions of law. Rejected as to the truth of those matters. They were not proven in this proceeding. However, accepted and incorporated that both the Department and the Legislature had the perceptions that the JUA was not designed to handle all of the cancellations and nonrenewals that seemed to be coming and that a vicious cycle was in operation. First sentence, rejected as not proven; second sentence, accepted. Both irrelevant to this proceeding, subordinate and unnecessary. COPIES FURNISHED: Daniel C. Brown, Esquire Mitchell B. Haigler, Esquire Brian M. Nugent, Esquire Katz, Kutter, Haigler, Alderman, Davis, Marks & Bryant, P.A. Post Office Box 1877 Tallahassee, Florida 32302-1877 Nancy J. Aliff, Esquire Dennis Silverman, Esquire Department of Insurance and Treasurer Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Honorable Tom Gallagher Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, Esquire General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact Petitioner is the owner of property located in Gulf County. In relevant part, the Petitioner's property lies on the mainland between St. Joe Beach to the north and Palm Point to the south, generally east of St. Joseph Bay. The bay is created by a narrow peninsula, St. Joseph Spit, which runs northward for approximately 15 miles from Cape San Blas through the Gulf of Mexico. U.S. Highway 98 runs north-south along the land and bisects the Petitioner's property. Section 161.053(1)(a), Florida Statutes, authorizes the Department to "establish coastal construction control lines on a county basis along the sand beaches of the state fronting on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida." Such lines shall be established so as to define that portion of the beach-dune system which is subject to severe fluctuations based upon a 100-year storm surge, storm waves, or other predictable weather conditions. There are circumstances under which the Department may set the CCCL further landward than the 100-year storm impact zone. A 100-year storm event is that which statistically may be expected to occur once every 100 years. A 100-year storm surge is the water level associated with the 100-year storm event. In actuality, a 100-year storm may occur more or less frequently than every 100 years. The CCCL is established to protect the state's beach and dune systems. Certain activities seaward of the CCCL, from construction, excavation or removal of material, to driving a vehicle over or across a sand dune or the vegetation growing seaward of the dune system, require a permit from the Department. The Department identifies the location of the control line by placing concrete monuments, called R-Monuments, at 1,000 foot intervals along the CCCL. In 1981, the Department established a Gulf County CCCL which crossed a portion of Petitioner's property. 2/ In 1986, the Department reset the CCCL over portions of the Petitioner's land east of U.S. Highway 98. Currently, the Petitioner's property runs along both sides of U.S. Highway 98 from a few feet southeast of the Department's R-Monument #15 to R-Monument #30. A small outparcel, not at issue in this proceeding, lies within the Petitioner's property which is subject to the challenged CCCL. No "metes and bounds" legal descriptions of the properties were offered which would permit a more accurate description of the lands involved. The property is utilized for pine forestry. Petitioner intends to use the eastern side of U.S. Highway 98 as a staging area for the timber harvest. The Petitioner would unload equipment at the roadside, take the equipment into the timberland, remove the harvested timber to the roadside, and load the trucks at the side of the highway. Petitioner asserts that the existence of the CCCL east of the highway and west of the timber prevents normal forestry operations and the harvest of the pine. However, Petitioner has not contacted the Department to determine whether permits are required to various activities, or, if permits would be required, whether the Department would issue the permits. There is no evidence that the existence of the CCCL completely prohibits the Petitioner from conducting forestry operations. There is testimony that timber could be taken to staging areas within the forest and loaded onto the trucks at sites to the east of the CCCL. There are primitive sand roads in the forest, but such roads are apparently not sufficient to support harvesting equipment and trucks without improvement. However, this would increase the cost of harvesting the timber. Utilizing the eastern part of U.S. Highway 98 would permit the harvest to be accomplished without the need to improve the existing roads or construct new roads into the timber forest, and would provide enhanced access to the Petitioner's timber mill located in Port. St. Joe. The Petitioner asserts that the Department's establishment of the CCCL over Petitioner's property east of St. Joe Bay enlarges, modifies, or contravenes the specific provision of law which authorizes the Department to establish the line over sand beaches "fronting" the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida, because the property in question does not front on one of the specified water bodies, but instead fronts onto St. Joe Bay. The statute does not specifically define "fronting". For the purposes of setting a CCCL, the Department asserts, and the greater weight of the evidence establishes, that sand beaches "front" on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida, if the beaches can be directly affected or influenced by a 100-year storm event in one of those water bodies. The Department's definition of "fronting" has been consistent throughout the period during which the agency has been responsible for setting control lines. In determining jurisdiction to establish the Gulf County CCCL, the Department considered the characteristics of the beach areas. In the area of Petitioner's land between R-Monument #15 and R-Monument #30, the sand beach is characterized as a mainland open marine beach system. Generally, high-energy waves carry and deposit the sand along the shoreline. As the sand dries, the wind carries the sand towards and into shore vegetation, eventually forming a dune system. There is a beach face at the water's edge, a berm area of approximately one and one-half meters, and a sand dune system which extends eastward of U.S. Highway 98. Although there are some dune areas which have been cut through by trails or roads, the dune system is otherwise very well developed. A sand "bar" is offshore from the beach. The area's sand is characterized as a medium grain with carbonate and shell fragments thoughout. The evidence establishes that the sand beach area results from, and is affected by, the day-to-day activity of the Gulf of Mexico. The waves carrying the sand into the area originate in the Gulf of Mexico. The beach area between R-Monument #15 and R-Monument #30 is actually accreting at present. The Gulf waves remove sand from beach areas to the north of the Petitioner's land and deposit the sand as the wave energy begins to dissipate upon passing east of the northern tip of St. Joe Spit. It is reasonable to expect that beach areas which are affected by daily fluctuations of wind and water from the Gulf of Mexico would likely be affected by a 100-year storm event in the same waters. The land south of R-Monument #30 and east of St. Joe Bay is characterized as a low-energy coastal marsh system. There is no dune system. There is no visible offshore sand "bar". The shore is composed of fine-grain sediment. The basic difference between the area north of R-Monument #30 and the area south of R-Monument #30 is that the southern coastline is not affected by the Gulf's waves, but is instead influenced by the smaller waves generated by wind action within the waters of St. Joe Bay. In determining the actual the location of the CCCL, the Department must project the portion of the beach dune system which is subject to severe fluctuation based upon a 100-year storm surge, storm waves, or other predictable weather conditions. The Department relies upon computer generated projections of model 100-year storm event hurricanes to determine the location of control lines. A hurricane is a complicated and chaotic weather system. The Department has developed a methodology which defines five basic parameters of a hurricane. These factors identify a storm's size, strength, speed, direction, and location of landfall. These parameters, corroborated with topographical data, determine the extent of the shoreline which is subject to severe fluctuation based upon a 100-year storm event and related storm water levels. A hurricane's size is defined by determining the distance from the storm center to the band of highest wind speed, called "radius to maximum wind" or "R-max". A storm's strength is defined by calculating the difference between normal atmospheric pressure (which exists outside the hurricane) and the low- pressure center of the storm, called "central pressure deficit". Speed is simply identified as the movement of the storm system in a specific direction. The direction of a storm is identified as the track or angle, referenced from north, along which the storm travels. The location of landfall is the site where the storm center crosses the shoreline from water to land. In generating data for projected storms, the Department first gathers historical data related to the five storm parameters for storms which have previously affected the area. Once the data is collected, a statistical analysis is completed which establishes a range of probabilities for the various parameters. The parameters and the statistical analysis are utilized to predict the characteristics of future 100-year storm events, and the anticipated related storm tides. The parameters of 19 hurricanes were utilized in the Gulf County study. Two computer models are utilized in the analysis. The first, more complex that the second model, incorporates two dimensional data related to water depths from and along the shore line to deep water, as well as additional topographical data. The accuracy of the two dimensional model is tested by comparing the computer's storm tide projection generated from the parameters of a past hurricane with the same storm's actual tides. According to the comparison, the two dimensional Gulf County model was accurate. After the two dimensional model is created and tested, a faster and less costly one dimensional model is constructed. Prior to operating the one dimensional model, it is corroborated with the two dimensional model to insure accuracy, by generating eleven hypothetical hurricanes on both models and the comparing storm tide predictions. The one dimensional model is thereafter utilized to project the parameters of future storm events and related storm tides. According to the comparison, the one dimensional Gulf County model was accurate. The one dimensional model utilizes water depths along six specific transect lines, identified as profiles 0 through 5, which project in one direction into the water. The model generates a total of 360 hurricanes over a 2,000 year period, ranked as to their probability of occurrence. From the ranking, the 100-year storm event is determined. The process is repeated five times generating five different 100-year storms. The five storms are compiled to project an average predicted storm tide height, which is then utilized in an erosion model. The erosion model, a computer generated topographical projection, predicts the amount of sand that will be removed from the shore during the projected 100-year storm event. The data is thereafter used to determine the location of the CCCL. In the Gulf County study, the erosion model was modified based upon the expectation that the existence of St. Joe Spit would reduce the storm surge heights along portions of mainland shoreline east of the bay. Accordingly, from the R-Monument #23 to R-Monument #31, the erosion model was reduced by 20 percent, resulting in a CCCL further seaward than would have otherwise been indicated. The Petitioner asserts that the Department's projections are not reliable and are inaccurate. In support of the assertion, Petitioner suggests that the damage resulting from Hurricane Kate, a 1985 storm which affected Gulf County and surrounding areas, was substantially less than that which the Department's projections would indicate should have been seen. However, although there is evidence that Hurricane Kate was a 100-year storm event at some time during the storm's existence, there is insufficient evidence to establish that Kate was a 100-year storm event at the time is crossed the Petitioner's property. The greater weight of the evidence establishes that the Department's projections are reliable and accurate predictions of the area which could be subject to severe fluctuations based upon a 100-year storm surge, storm waves, or other predictable weather conditions. According to the weight of the evidence, the Gulf County coastal construction control line established by the Department of Natural Resources reflects a reasonable determination of the portion of the Gulf County beach-dune system which is subject to severe fluctuations based upon a 100 year storm surge, storm waves, or other predictable weather conditions.
The Issue The issues to be decided in this case are whether Respondent is liable for the violations charged in the NOV, whether Respondent should pay the penalties assessed in the NOV, and whether Respondent should be required to take the corrective actions demanded in the NOV.
Findings Of Fact On August 7, 2014, Petitioner issued the NOV, charging Respondent with failure to maintain its stormwater facility in compliance with its permit and state law. Respondent filed an answer and request for a hearing. The matter was referred to the Division of Administrative Hearings. Petitioner Department of Environmental Protection (“Department”) is the state agency having powers and duties related to the regulation of stormwater facilities. Respondent Classic Homebuilders Incorporated is a Florida corporation and holds a General Stormwater Permit issued by the Department for the construction and operation of a stormwater facility at 5100 Terra Lake Circle, Pensacola, Florida. On April 9, 2013, Department staff inspected Respondent’s stormwater facility and determined that the ponds do not percolate within 72 hours as required by the permit. On July 23, 2014, Department staff inspected the facility again and determined that the percolation problem had not been corrected. Debris and silt were observed in the stormwater facility. Respondent has not submitted an “as-built” certification. The Department incurred $500 in expenses associated with its investigation of this matter. That is a reasonable amount.
