The Issue This case involves a challenge to St. Johns River Water Management District’s (District or SJRWMD) intended issuance of an Environmental Resource Permit (ERP) granting the City's Application No. 4-127-97380-1, for the construction and operation of a surface water management system for a retrofit flood-relief project known as Drysdale Drive/Chapel Drive Drainage Improvements consisting of: excavation of the Drysdale Drive pond (Pond 1); improvement to the outfall at Sterling Lake; and the interconnection of Pond 1 and four existing drainage retention areas through a combination of pump stations and gravity outfalls (project or system). The issue is whether the applicant, the City of Deltona (City or Deltona), has provided reasonable assurance the system complies with the water quantity, environmental, and water quality criteria of the District’s ERP regulations set forth in Chapter 40C-4, Florida Administrative Code,1 and the Applicant’s Handbook: Management and Storage of Surface Waters (2005) (A.H.).2
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order issuing to the City of Deltona an ERP granting the City's Application No. 4-127-97380-1, subject to the conditions set forth in the Technical Staff Report. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2006.
Findings Of Fact The applicant proposes, on the west shore of the Indian River to: (1) Dredge an access channel 3' deep, 801 wide, and 1,500' long, Construct a vertical seawall of 600 linear feet along the waterward side of the proposed fill area, and Disposit some 4,000 cubic yards of spoil in a 200' x 400' area enclosed by the seawall. This proposed seawall will be in line with and connect to an existing seawall along the adjacent north property. A hydraulic dredge and a silt screen will be used during dredging operation. Petitioner acquired the submerged lands fronting his property on the west bank of the Indian River at Melbourne, Florida to the bulkhead line, by purchase from the Trustees of the Internal Improvement Trust Fund (IITF) in 1963 and 1964. The submerged land just north of Petitioner's property was likewise acquired from the Trustees, bulkheaded and filled, circa 1963 where a commercial marina is now operated by one Rathman. Indian River in the vicinity of Melbourne has become in the nature of a basin by reason of the Eau Gallie Causeway to the north and the Melbourne Causeway to the south. These causeways have materially reduced the flushing of this stretch of the Indian River and increased the turbidity of the water. Normal turbidity of the Indian River in the vicinity of the lands here involved is such that the bottom cannot be seen at depths greater than 1.5 to 2 feet. Surface drainage from U.S. 1, which runs just west of Shablowski`s property, and an area of some 5 square miles just west of U.S. 1 runs into the Indian River through culverts just north and south of Petitioner's property. No evidence was submitted that this surface runoff goes through debris or settling traps before being discharged into the Indian River. Rathman's marina and the area there filled is bounded on the south by a bulkhead normal to the shoreline of Indian River and extending into the river some 200 feet. This creates a pocket where some debris accumulates on the north end of Petitioner's property. Granting the applied for permit would result in moving this pocket 400 feet to the south. Although the Indian River, between the causeways above noted, is in an ecologically stressed condition due primarily to the effects of the causeways and the surface water drainage into Indian River, it is not dead. Cuban Shoalweed grows in the shallow water areas of the Indian River (less than 3 feet deep) and provides a source of food to the marine life in the area. The submerged lands owned by Petitioner are sparsely covered (10 percent to 25 percent) with patches of Cuban Shoalweed. The area proposed for filling has an average depth of approximately 1.5 feet with some areas near the eastern edge of the property having depths of up to 3.5 feet. However, these are primarily holes or former channels. A significant amount of animal life exists on the property in question. These consist of blue crabs and numerous small fishes such as silversides, mojarra, needlefish, mullet, sheepshead, leather jack and snook. Benthic samples collected include polychaetes, amphipods, sphaeromid isopods, cumaceans, small shrimp, gem clams, paper mussels, gobies and pipe fish. Petitioner's proposal to dredge an access channel 3 feet deep, 80 feet wide, and 1500 feet long from the eastern edge of the property riverward will not have a significant adverse impact on marine biological resources or water quality. (Exhibit 3). Silt screens will be used in connection with the hydraulic dredging and the shallow depths to which Petitioner proposes to dredge will not cause permanent damage to the bottom grasses, if any, in the dredged area. The vertical bulkhead proposed by Petitioner would increase the possibility of scouring in the areas; however Petitioner agreed at the hearing to install rip rap along this bulkhead. This will eliminate scouring and promote the propagation of marine life. Granting the application will result in the loss of approximately 2 acres of moderately productive bottom land in the Indian River, or approximately 0.1 percent of the total area of the Indian River in the basin between the two causeways. Respondent generally acknowledges that filling of the area in question will not have a significant effect upon the ecology of the area; however, if others also fill productive bottom lands the cumulative effect could be significant. Petitioner has not determined the use to which the property will be put if the application is granted. At such time as construction is instituted DER can establish requirements for surface water runoff containment to protect the receiving waters.
The Issue The issue is whether an Environmental Resource Permit should be issued to KGB Lake Howell, LLC, authorizing the construction of a surface water management system to serve an apartment complex known as the Estates at Lake Howell in the City of Casselberry, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this proceeding, Respondent, St. Johns River Water Management District (District), proposes to issue an Environmental Resource Permit to Respondent, KGB Lake Howell, LLC (Applicant), authorizing the construction of a stormwater management system to serve a 240-unit apartment complex known as the Estates of Lake Howell. The project will be located on an undeveloped tract of land in the City of Casselberry (City), Seminole County, Florida, just north of the Orange County line. It will include ten three-story buildings, parking, clubhouse/ administration building, amenity complex, and wet detention pond. The project also incorporates a 3.62-acre stormwater pond, now owned and used by Seminole County (County), lying east of Lake Ann Lane across from the project site, which was included in the overall acreage calculations for the purpose of increasing apartment density on the site. The Applicant has authorization from the County to apply for the permit incorporating that tract of land. The pond will continue to function as a stormwater facility for the County and will not accommodate stormwater from the project site. The project site consists of 38.9 acres located on the north side of Howell Branch Road, east of State Road 436 (also known as Semoran Boulevard), and west of Lake Ann Lane in the City. The site is currently undeveloped and includes an abandoned orange grove and upland pine flatwoods community, which make up approximately 14.6 acres, while the remaining 24.3 acres is a mixed forested wetland system. The property is now owned by the Harold Kasik Living Trust (Kasik property), which has a contract for purchase with the Applicant. The Kasik property is in the shape of a rectangle, 648 feet by 2,530 feet, with its long sides running north- south. It is bordered on the north and east by single-family residential and vacant land, to the south by commercial development, and to the west by high-density residential and commercial development. The property has a high elevation of approximately 83 feet on its southeastern corner and falls to the north/northeast, where the edge of the wetland system is at an elevation of 63 or 64 feet. The major development constraint on the site is the large wetland tract on the northern portion of the property. In order to minimize proposed impacts to the wetlands, the Applicant proposed the transfer of the development entitlements from the County land to benefit the Applicant's property. More specifically, the Applicant will acquire the County property, the Applicant will simultaneously grant a perpetual drainage easement over the property to the County, the Applicant will maintain the landscaping of the property in perpetuity, the Applicant will convey around five acres of wetlands on the northern end of the Kasik property to the County in fee simple, and the City will allow the transfer of development rights from the property. The project will adversely impact 0.99 acres of low- quality wetlands, of which 0.72 acres are to be dredged and 0.27 acres are to be filled to provide the fencing around the wet detention facility. To offset this impact, the Applicant proposes to preserve 17.8 acres of forested wetlands, plus 1.2 acres of forested uplands, or a mitigation ratio of 18:1. The District's guidelines for preservation mitigation applicable to this project are 10:1 to 60:1 for wetland impacts and 3:1 to 20:1 for upland impacts; thus, the mitigation plan falls within these guidelines. Under current conditions, stormwater runoff from the project site sheet flows into the on-site wetland and ultimately Lake Howell (the Lake), a Class III water body which meets all applicable water quality standards and is not an Outstanding Florida Water. After development occurs, stormwater from the developed portions of the property will be conveyed to a wet detention pond for required water quality treatment and peak discharge rate attenuation. After treatment in the detention pond, the water will discharge to the on-site wetland, as it does now, and eventually will be conveyed into the Lake. Off-site flows will continue to be conveyed into the on-site wetland. The wet detention pond, which has a minimum depth of twelve feet and a permanent pool of water with a mean depth of two to eight feet, has been designed to accommodate a 25-year, 24-hour storm. Post-development discharge will be less than pre-development, and the outfall structure has been designed to avoid channelization in the wetlands after the point of discharge. Since at least the late 1940's, Petitioner, Shirley Haynes, or her relatives, have owned, or resided on, a multi-acre tract of land just north of the project site at 2764 Lake Howell Lane. She has substantial frontage on the south side of the Lake. The southern portion of her property, which are wetlands, adjoins the northern boundary of the project site. For the past three years, Petitioner, Egerton van den Berg, has resided on a ten-acre tract of land at 1245 Howell Point, which is northeast of the project site. He has approximately 235 feet of frontage on the south side of the Lake. As argued in their Proposed Recommended Order, Petitioners generally contend that the application is "materially deficient" in several respects in violation of Rule 40C-4.101; that the Applicant has failed to satisfy Rule 40C-4.301(1)(c) and (d), which in turn constitutes a failure to meet the requirements of Rule 40C-4.302(1)(a)-(c); that the Applicant failed to satisfy the criteria in Sections 12.2.3(a)-(f), 12.2.1, 12.2.1.1, 12.2.1.3, 12.2.2.3(a)-(e), 12.2.2.4(a) and (b), 12.3.2.2(c), and 12.3.8(a) of the Applicant's Handbook: Management and Storage of Surface Waters (Applicant's Handbook); that the District did not adequately consider the cumulative impacts of the project as required by Section 373.414(8)(a), Florida Statutes; that a low flow analysis of the Lake was not performed, as required by Rule 40C-8.011(5); that the Applicant did not submit detailed mitigation plans as required by Section 12.3.3.2 of the Applicant's Handbook; that the 18:1 ratio for mitigation proposed by the Applicant is inappropriate; and that the District should not approve the density of the apartments established by the City. These concerns, to the extent they have been identified as issues in the parties' Pre-Hearing Stipulation, are addressed in the findings below. Where contentions have been raised by Petitioners, such as the placement of the detention pond over a depressional area, and they have not been argued in the Proposed Recommended Order, they have been deemed to be abandoned. Conditions for issuance of permits Rule 40C-4.301(1)(a)-(k), Florida Administrative Code, specifies eleven substantive requirements for which reasonable assurance must be given in order for a standard permit to be issued. Subsection (3) of the same Rule provides that the standards and criteria contained in the Applicant's Handbook shall determine whether the foregoing reasonable assurances have been given. Additional conditions for the issuance of a permit are found in Rule 40C-4.302(1) when the project, or any part of it, is located in, on, or over wetlands or other surface waters. Therefore, because a part of the Applicant's system will be located in wetlands, the Applicant must also give reasonable assurance that the project will not be contrary to the public interest, and that it will not cause unacceptable cumulative impacts upon the wetlands or surface waters. a. Rule 40C-4.301 Paragraphs (a)-(c) of the Rule require that an applicant provide reasonable assurance that the project will not cause adverse water quantity impacts to receiving waters and adjacent lands, adverse flooding to on-site or off-site property, or adverse impacts to existing surface water storage and conveyance capabilities. If a system meets the requirements of Section 10.2.1(a) through (d) of the Applicant's Handbook, there is a presumption that the system complies with the requirements of Paragraphs (a) through (c). This presumption has been met since the evidence supports a finding that the post- development peak rate of discharge will be lower than the pre- development peak rate of discharge for a 24-hour, 25-year storm event. Therefore, the Applicant's system meets the requirements of these Paragraphs. Paragraph (d) of the Rule requires that an applicant give reasonable assurance that the project "will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." To satisfy this requirement, an applicant must also demonstrate compliance with the two-prong test in Sections 12.2.2 and 12.2.2.4 of the Applicant's Handbook. Section 12.2.2 requires that an applicant provide reasonable assurance that a regulated activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, and habitat of fish, wildlife, and listed species. In its proposal, the Applicant proposes to fill a total of 0.99 acres of wetlands. Since these impacts will eliminate the ability of the filled part of the on-site wetland to provide functions to fish and wildlife, the filling will cause adverse impacts. Under these circumstances, Section 12.2.1.1 requires that the Applicant either implement practicable design modifications to reduce or eliminate these adverse impacts or meet one of the exceptions under Section 12.2.1.2. Under Section 12.2.1.1, a proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered practicable. The Applicant’s design for the proposed project went through a number of iterations prior to submittal to the District to reduce adverse impacts to the wetlands. During the permitting process, the District requested that the Applicant consider a number of other suggestions to reduce or eliminate the adverse impacts to wetlands such as adding a fourth floor to the apartment buildings to eliminate the need for one apartment building, building a parking garage for the tenants, and eliminating the tennis and volleyball courts. Because the Applicant provided detailed reasons why none of those suggestions were practicable, it was not required to implement any of those design modifications. In addition, the Applicant’s decision not to include a littoral zone around the stormwater pond did not increase the amount of wetland impacts as that engineering decision resulted in a stormwater pond that was simply deeper and not wider. Therefore, the Applicant has met the requirement to reduce or eliminate adverse wetland impacts. Section 12.2.1.1 only requires an elimination and reduction analysis when: (1) a proposed system will result in adverse impacts to wetland functions and other surface water functions so that it does not meet the requirements of Sections 12.2.2 through 12.2.3.7, or (2) neither one of the two exceptions within Section 12.2.1.2 applies. In determining whether one of the two exceptions in Section 12.2.1.2 applies, the District must evaluate the long- term ecological value of the mitigation proposed by the Applicant. If the mitigation is not adequate to offset the adverse impacts of the proposed system, then it is unlikely either exception in Section 12.2.1.2 will apply. As noted above, the Applicant’s proposed dredging and filling of the southern edge of the wetlands on the project site will eliminate the ability of that wetland area to provide functions to fish and wildlife. However, the Applicant’s mitigation plan of placing 17.8 acres of wetlands and 1.2 acres of uplands under a conservation easement to preserve that property in its natural state in perpetuity will fully replace the types of functions that the part of the wetlands proposed to be impacted provides to fish and wildlife. The mitigation plan will also offset the adverse impacts that this project will have on the value and functions provided to fish and wildlife by the impacted part of the wetlands. In this case, the first exception under Section 12.2.1.2(a) applies as it meets that Section's two requirements: the ecological value of the functions provided by the area of wetland to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value than the area or wetland to be adversely affected. Also, the quality of the wetland to be impacted is low. All of the proposed impacts will occur in the area of the wetland that was historically disturbed and in which nuisance and exotic species are prevalent. Due to nuisance and exotic vegetation, the ecological value provided by that area to wildlife is low. The mitigation for the proposed project will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted because the proposed mitigation will preserve eighteen times more wetlands that are of higher quality and provide greater value than the wetland area to be impacted. The type of wetland to be preserved, a mixed forested wetland containing hardwoods, is rare for the area. Although the mitigation plan will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted, the Applicant did not meet the second exception in the elimination and reduction rule under Section 12.2.1.2(b) because the wetlands to be preserved are not regionally significant. In addition to meeting the elimination and reduction rule through implementation of practicable design modifications, the Applicant also satisfied the same rule by meeting the first exception found in Section 12.2.1.2(a). Thus, the Applicant has satisfied Section 12.2.2, which is the first prong of the test to determine compliance with Paragraph (d). The second prong of the test to determine whether Paragraph (d) of the Rule has been satisfied is found in Section 12.2.2.4. That Section requires that an applicant give reasonable assurance that the activity will not change the hydroperiod of a wetland so as to affect wetland functions. For the following reasons, that prong of the test has been satisfied. Since the wetlands are primarily groundwater-influenced, the construction of the stormwater pond between the project and the wetlands will not adversely affect the wetlands. As the soils surrounding the pond are very porous with a high infiltration and percolation rate, water from the stormwater pond will still reach the wetlands through lateral seepage. Further, the Applicant will install an energy dissipating device on the outfall spout at the point of discharge so that water will be spread out from the stormwater pond as it discharges into the receiving wetlands. As noted earlier, this will prevent an adverse channelization effect. Finally, stormwater runoff from the surrounding basins that currently discharge into the wetlands will not be affected by the construction of the stormwater system. That runoff will continue to flow into the wetlands on the project site. Because the Applicant has satisfied Sections 12.2.2 and 12.2.2.4, Paragraph (d) of the Rule has been met. Paragraph (e) of the Rule generally requires that an applicant provide reasonable assurance that a project will not adversely affect the quality of receiving waters. Here, the Applicant has provided such assurance. This is because the system has been designed in accordance with all relevant District criteria. Also, the Applicant has proposed to revise Permit Condition 26 as follows: Condition 26. This permit authorizes construction and operation of a surface water management system as shown on the plans received by the District on June 14, 2001, and as amended by plan sheet C4 (Sheet 07 of 207) received by the District on January 23, 2002. In view of this revision, the Applicant's wet detention system complies with all of the design criteria contained in Rule 40C-42.026(4). Under Rule 40C-42.023(2)(a), compliance with the design criteria contained in Rule 40C-42.026 creates a presumption that state water quality standards, including those for Outstanding Florida Waters, will be met. This presumption has not been rebutted; therefore, the requirements of Paragraph (e) of the Rule have been satisfied. Further, Sections 12.2.4.1 and 12.2.4.2 state, in part, that reasonable assurance regarding water quality must be provided both for the short term and the long term, addressing the proposed construction, alteration, operation, maintenance, removal, and abandonment of the system. The Applicant has provided reasonable assurance that this requirement is met through the design of its surface water management system, its long-term maintenance plan for the system, and the long and short-term erosion and turbidity control measures it proposes. If issued, the permit will require that the surface water management system be constructed and operated in accordance with the plans approved by the District. The permit will also require that the proposed erosion and turbidity control measures be implemented. Section 12.2.4.5 does not apply because there are no exceedances of any water quality standards at the proposed receiving water. Also, Sections 12.2.4.3 and 12.2.4.4 do not apply because the Applicant has not proposed any docking facilities or temporary mixing zones. Paragraph (f) of the Rule requires that an applicant not cause adverse secondary impacts to the water resources. Compliance with this requirement is determined by applying the four-part test in Section 12.2.7(a) through (d). As to Section 12.2.7(a), there are no secondary impacts from construction, alteration, and intended or reasonably expected uses of the proposed system that will cause water quality violations or adverse impacts to the wetland functions. The Applicant chose not to provide buffers abutting the wetlands but rather chose measures other than buffers to meet this requirement. The Applicant has provided reasonable assurance that secondary impacts will not occur by placing the stormwater pond between the planned project and the wetlands, so that the pond itself will serve as a buffer by shielding the wetland from the lighting and noise of the project, and by acting as a barrier to keep domestic animals out of the wetlands. In addition, the Applicant increased the amount of property to be preserved as mitigation by adding 2.97 acres of wetlands and 1.2 acres of uplands to the mitigation plan to mitigate for any remaining secondary impacts. Accordingly, the first part of the secondary impacts test in Section 12.2.7(a) is satisfied. As to Section 12.2.7(b), because there is no evidence that any aquatic or wetland-dependent listed animal species use uplands for existing nesting or denning adjacent to the project, the second part of the test has been met. No adverse secondary impacts will occur under the third part of the test in Section 12.2.7(c) because the proposed project will not cause impacts to significant historical or archaeological resources. Finally, adverse secondary impacts as proscribed by Section 12.2.7(d) will not occur because no evidence was presented that there would be additional phases or expansion of the proposed system or that there are any onsite or offsite activities that are closely or causally linked to the proposed system. Therefore, the proposed project satisfies Paragraph (f) of the Rule. Paragraph (g) of the Rule requires that an applicant provide reasonable assurance that a project will not adversely impact the maintenance of surface or ground water levels or surface water flows established in Chapter 40C-8. Minimum (but not maximum) surface water levels have been established for the Lake pursuant to Chapter 40C-8 for the basin in which the project is located. The project will not cause a decrease of water to, or cause a new withdrawal of water from, the Lake. Therefore, the project satisfies this requirement. Finally, Petitioners have acknowledged in their Proposed Recommended Order that the Applicant has given reasonable assurance that the requirements of Paragraphs (h), (i), (j), and (k) have been met. The parties have also stipulated that the receiving water (Lake Howell) meets all Class III water quality standards. Therefore, the project satisfies the requirements of Subsection 40C-4.301(2). Rule 40C-4.302 - Public Interest Test Under Rule 40C-4.302(1)(a)1.-7., an applicant must provide reasonable assurance that the parts of its surface water management system located in, on, or over wetlands are not contrary to the public interest. Similar requirements are found in Section 12.2.3. The Applicant has provided reasonable assurance that the parts of the project that are located in, on, or over wetlands (mainly the detention pond and fill) are not contrary to the public interest, because the evidence showed that all seven of the public interest factors to be balanced are neutral. Because the proposed permanent mitigation will offset the project’s adverse impacts to wetlands, no adverse effects to the conservation of fish and wildlife due to the project’s permanent nature will occur. The evidence also showed that best management practices and erosion control measures will ensure that the project will not result in harmful erosion or shoaling. Further, it was demonstrated that the project will not adversely affect the flow of water, navigation, significant historical or archaeological resources, recreational or fishing values, marine productivity, or the public health, safety, welfare or property of others. Finally, the evidence showed that the project’s design, including permanent mitigation, will maintain the current condition and relative value of functions performed by parts of the wetland proposed to be impacted. Therefore, the project meets the public interest criteria found in Rule 40C-4.302(1)(a). Rule 40C-4.302(1)(b) - Cumulative Impacts Rule 40C-4.302(1)(b) and Section 12.2.8 require that an applicant demonstrate that its project will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. Under this requirement, if an applicant proposes to mitigate the adverse impacts to wetlands within the same drainage basin as the impacts, and if the mitigation fully offsets these impacts, the District will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. The Applicant has chosen to mitigate for the impacts to 0.99 acres of wetlands by preserving 17.8 acres of wetlands and 1.2 acres of uplands on-site. Since this mitigation will occur in the same drainage basin as the impacts and the mitigation fully offsets those impacts, the Applicant satisfies the requirements of the Rule. Rule 40C-4.302 - Other Requirements The parties have stipulated that the requirements of Paragraphs (c) and (d) of Rule 40C-4.302(1) do not apply. There is no evidence that the Applicant has violated any District rules or that it has been the subject of prior disciplinary action. Therefore, the requirements of Subsection (2) of the Rule have been met. Miscellaneous Matters County Pond Site The Seminole County pond site located on the east side of Lake Ann Lane and across the street from the project is not a jurisdictional wetland and does not have any wetland indicators. It is classified as an upland cut surface water. The Applicant is not proposing to impact any wetlands at the pond site, and the site is not part of the proposed mitigation plan for the project. The permit in issue here is not dependent on the pond site, and nothing in the application ties the project with that site. Indeed, the transfer of density rights from the County property is not relevant to the District permitting criteria. Review of Application When the decision to issue the permit was made, the District had received all necessary information from the Applicant to make a determination that the project met the District's permitting criteria. While certain information may have been omitted from the original application, these items were either immaterial or were not essential to the permitting decision. The application complies with all District permitting criteria. Contrary to Petitioners' contention, the Applicant does not have to be the contract purchaser for property in order to submit an application for that property. Rather, the District may review a permit application upon receipt of information that the applicant has received authorization from the current owners of the property to apply for a permit. In this case, the Applicant has the permission of the current owners (the Harold Kasik Living Trust).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the requested permit as described above. DONE AND ENTERED this 29th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2002. COPIES FURNISHED: Kirby B. Green, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Shirley B. Haynes 2764 Lake Howell Road Winter Park, Florida 32792-5725 Egerton K. van den Berg 1245 Howell Point Winter Park, Florida 32792-5706 Charles A. Lobdell, III, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Meredith A. Harper, Esquire Shutts & Bowen Post Office Box 4956 Orlando, Florida 32802-4956
Findings Of Fact The Petitioner, Bocilla Waterways, Inc., is a corporate entity formed for the purpose of pursuing the subject project and installing the proposed channel. Randall Craig Noden, secretary- treasurer of that corporation, and a director of it, is a realtor who sells and develops property on Don Pedro Island, in the vicinity of the proposed project. He and other officers and directors of the Petitioner corporation have an interest in property on some, but not all, upland areas adjacent to Bocilla Lagoon, Old Bocilla Pass and Kettle Harbor, the water bodies germane to this proceeding. The Respondent, State of Florida, Department of Environmental Regulation, is a state agency charged with regulating dredge and fill projects in state waters and navigable waters pursuant to Chapters 253 and 403, Florida Statutes, and Rule Chapters 17-3 and 17-4, Florida Administrative Code. The Intervenor, Environmental Confederation of Southwest Florida (ECOSWF), is an incorporated, not-for-profit organization whose membership includes numerous environmentally concerned public interest organizations or associations located throughout southwest Florida. Members of the Intervenor use Old Bocilla Pass, Kettle Harbor, Bocilla Lagoon and Lemon Bay, an adjacent contiguous water body, for boating, swimming, fishing (both recreational and commercial), and collecting shellfish. Some of the membership of the Intervenor live in the immediate area of the proposed project. Project Description The Petitioner submitted a dredge and fill permit application to the Respondent, DER, proposing excavation of an access channel through the uplands of Don Pedro Island and adjacent transitional and submerged lands. The channel would be 100 feet wide, 450 feet long and dredged to a depth of -5.0 feet mean low water, with 2:1 side slopes grading to 3:1 at approximately +0.5 feet NGVD. The channel below mean high water would be 70 feet wide' and 670 feet long to a depth of -5.0 feet mean low water, with 2:1 side slopes. A rip-rap strip five feet wide would be placed in the littoral zone on either side of the channel. As originally proposed, the channel excavation would be performed by dragline and clamshell with spoil placed upon uplands for disposal. The excavation would progress from the west side of the project to the east, with plugs remaining at the eastern terminus of the channel until it stabilizes and the rip- rap is placed along the excavated channel. A turbidity curtain is proposed to be used to maintain water quality above state standards regarding turbidity. The applicant originally proposed to transplant seagrasses, displaced in the excavation process, back into the bottom of the excavated channel. Earthen slopes above mean high water would be vegetated in order to achieve stabilization. Some of these proposals were modified after negotiations with DER staff, such that the seagrass transplanting portion of the project would be accomplished in surrounding areas of the water bottom of Bocilla Lagoon and Kettle Harbor, specifically, bare areas and otherwise degrassed, vegetated flats. The applicant also proposes to install navigation aides in Bocilla Lagoon and Kettle Harbor in order to help maintain boat traffic in the channel, and to facilitate ingress and egress through the proposed channel. Don Pedro Island is a barrier island lying off the coast of Charlotte County, Florida. The only access to the island is by boat or helicopter. Bocilla proposes to excavate the proposed channel in order to, in part, provide better navigational access to Bocilla Lagoon which lies within Don Pedro Island. There is presently a navigational channel in the Bocilla Lagoon through what is called "Old Bocilla Pass," located at the north end of Bocilla Lagoon and communicating with Lemon Bay. Bocilla contends that the channel is somewhat tortuous and subject to shoaling, with concomitant grassbed damage by boat propellers, and that thus, a better navigational access in the form of a shorter, deeper, more direct channel from the southern end of Bocilla Lagoon to Kettle Harbor is required. The project would involve the removal of approximately .18 acres of mangroves (red and black mangroves) and .187 acres of seagrasses. Bocilla has proposed to mitigate the damage involved in the mangrove and seagrass removal by replanting mangroves, on three foot centers, along both sides of the proposed channel, and replanting or transplanting seagrasses in bare areas of Kettle Harbor, near the proposed project. Description of Pertinent State Waters Bocilla Lagoon, Kettle Harbor and Old Bocilla Pass are designated as Class II, navigable waters of the state and are designated for shellfish propagation or harvesting. Shellfish, including clams and oysters, occur in Bocilla Lagoon, Kettle Harbor and Old Bocilla Pass. As demonstrated by Intervenor's witnesses Wade, Cole and Wysocki, shellfish are harvestable and harvested in Bocilla Lagoon and Kettle Harbor at the present time. Bocilla Lagoon, Kettle Harbor and Old Bocilla Pass have also been conditionally approved by DNR for shellfish harvesting. DNR approves or prohibits waters for shellfish harvesting, and as a matter of policy generally prohibits shellfish harvesting in manmade "dead-end" canals. A "conditionally approved" water body, such as those involved herein, is an area approved for shellfish harvesting, but one which is more likely to be affected by pollution events. Thus, they are monitored more closely by DNR. Such events as additional residential development in an area, resulting in more septic tank sewage discharge, on-board toilet discharges from boats or the installation of a water and sewer treatment plant, can result in DNR temporarily or permanently closing a conditionally approved area to shellfish harvesting. Natural phenomenon such as the influx of red tide is also a factor which is considered by DNR in electing to classify a shellfish harvesting area as conditionally approved, and in electing to prohibit shellfish harvesting in an area. It was established through testimony of witnesses Feinstein and Setchfield of DER that long-standing DER policy provides that when DNR conditionally approves waters as being shellfish harvestable, that means they are "approved" for all shellfish harvesting purposes, but simply subjected to closer monitoring and with an increased likelihood of closure due to immediate pollution events. Therefore, the prohibition in Rule 17- 4.28(8)(a), Florida Administrative Code, prohibits issuance of dredge and fill permits in areas approved for shellfish harvesting or "conditionally" approved, since there is no difference in the "shellfish harvestable" nature of the waters until a closure occurs, which may simply occur sooner in conditionally approved waters. Bocilla Lagoon and Kettle Harbor are both naturally- formed water bodies, although some dredging has been allowed to occur in them in the past. They are not manmade, "dead-end" canals. Neither water body has the physical or biological characteristics of a "typical dead-end canal". Both are quite high quality habitats for the natural flora and fauna occurring in the marine environment in that area, and thus the general policy of DNR established by witnesses Cantrell, Fry, Feinstein and Sperling which prohibits shellfish harvesting in manmade, dead-end canals, does not apply to Bocilla Lagoon and Kettle Harbor. The water quality in both bodies of water is good and within DER standards generally. At times however, the water quality in Kettle Harbor suffers from a failure to meet DER dissolved oxygen standards contained in Chapter 17-3, Florida Administrative Code. Indeed, the water quality in Bocilla Lagoon is generally somewhat better than the water quality in Kettle Harbor. Environmental Impacts The project as currently proposed would result in the removal of approximately .18 acres of mangroves and .18 acres of seagrasses. Seagrasses and mangroves are important in providing areas of cover, food, and habitat for various estuarine species. Seagrasses serve to stabilize marine soils resulting in a decrease of suspended solids in contiguous waters with resulting decrease in turbidity in those waters. The loss of seagrasses can result in de- stabilization of the bottom sediment, such that suspended solids or turbidity increases in involved waters, which can result in decreased light penetration to the vegetated bottoms. Decreased light penetration, if of a sufficient degree, can result in the further loss of seagrasses and other bottom flora, causing in turn, increased turbidity and further decreased light penetration, with progressively destructive results to seagrass beds and other marine flora and fauna, with a substantial detrimental effect on the marine biological community in general. Mangroves serve as biological filters, trapping sediments, heavy metals, nutrients and other pollutants, uptaking them through their roots and converting them to usable plant food and thus filtering such harmful elements from state waters and rendering them into environmentally harmless substances. The removal of the mangroves at the proposed channel site will result in a loss of their beneficial effects. These beneficial effects will be absent for a greater period of time than it takes to merely plant replacement mangrove plants, since mature trees will be removed and mangrove seedlings will be replanted in their stead. Maturation of mangroves at this location would take in excess of three years, thus replacement of the beneficial filtering effects of the removed mangroves will take in excess of three years, to which time must be added the time which lapses between the original mangrove removal and the replanting of the seedlings, which would start the maturation period. Bocilla proposes to mitigate the removal of the mangroves by that replanting, as well as to transplant seagrasses removed from the channel site to other nearby areas currently bare of seagrass. Seagrass replanting is not a well-established practice. Compared to mangrove replanting, there is less experience, less information and a lower success ratio historically. Of the hundreds of dredge and fill projects occurring and approved throughout Florida, only three have involved replanting of removed seagrasses. Two of the projects involved the Port of Miami in Dade County and the "New Pass site" in Sarasota County. In both of these cases, seagrass replanting cannot be termed successful. The Port of Miami project resulted in a final survival rate of only twelve per cent of ,the grasses replanted. The New Pass project thus far has resulted in a survival rate of only 39 per cent of the seagrasses replanted, after only nine months. The Petitioner proposes that the replanting be accomplished by Mangrove Systems, Inc. That firm is headed by Robin Lewis, who oversaw the seagrass replanting project at the New Pass area in Sarasota. The location and method of replanting seagrasses at New Pass, as to water depth, type of bottom, type of grass and planting method, was generally similar to that proposed for the Bocilla project. That is, it would be accomplished by "plug planting," of "bald" spots at generally the same latitude and similar water depth. The survival rate at the end of six months at the New Pass project was 73 per cent. The survival rate at the end of nine months was 39 per cent. Mangrove Systems, Inc. and Mr. Lewis acknowledges that it is difficult to attribute the decrease in survival rates and grass shoot densities to any one cause, but that predation and a shift in sediments due to the vagaries of water currents, were probably the chief causes for the decrease in seagrass survival. Mangrove Systems, Inc. and the Petitioner propose a guarantee whereby Mangrove Systems, Inc. would replant more seagrasses, if needed, if a low survival rate occurs, which it defines to mean less than a 70 to 80 per cent survival rate after one or two years. There is no guarantee concerning the survival rate after a second planting, however. It was not established when the survival rate will be measured, in determining whether a 70 to 80 per cent survival is being achieved. In this connection, the central Florida coast where the Bocilla project is proposed, is not as conducive to seagrass growth as other more tropical marine areas, such as in the Florida Keys. In the area of the proposed project, seagrasses do not generally produce a great deal of seed and tend not to grow back very readily, once they are destroyed. Seagrasses in the Florida Keys tend to have, in comparison, much greater seed production and for this and other reasons, tend to reproduce themselves more readily once destroyed. They tend to be more amenable to transplanting in the Florida Keys marine environment. Mangrove Systems, Inc. has conducted a seagrass replanting project in the Florida Keys, however. One-third of the seagrasses planted in that project have not survived after two years. In short, the likelihood of seagrass survival has been insufficiently tested in the geographical area and latitude and in similar soils, water depths and temperatures as those involved in the instant case, such that reasonable assurance of adequate seagrass survival with the replanting project proposed will occur. Hydrographics and Maintenance Dredging The evidence is uncontradicted that the opening of the proposed channel would increase circulation in the southern end of Bocilla Lagoon. Increased circulation tends to have good effects in that it reduces stratification in water bodies. Stratification is a condition which occurs when the deeper waters of a given water body do not interchange with surface waters, but rather stratify or become characterized by layers of differing levels of dissolved oxygen, temperature, pH, etc. Typically, lower levels of a stratified body of water are characterized by low levels of dissolved oxygen. The present water quality of Bocilla Lagoon however, is not characterized by statification in any significant degree. It is very similar in water quality, in terms of dissolved oxygen, temperature, pH and other Chapter 17-3 water criteria, to that water quality of the nearby intra-coastal waterway into which the channel into and through Kettle Harbor would open. The intra-coastal waterway is agreed to be a well- circulated body of water, meeting all current State water quality standards. Accordingly, the opening of the channel and the increased circulation it may cause in the southern end of Bocilla Lagoon would have minimal, positive benefits. The change in circulation and in water current patterns and velocities caused by the opening of the direct, shorter channel from lower Bocilla Lagoon and Kettle Harbor may, negatively affect the present seagrass growth in seagrass beds in Kettle Harbor and Bocilla Lagoon in the vicinity of each end of the proposed channel, due in part to increased current velocities that would result from tidal exchange through the shorter, straight channel which would be opened. The expert witnesses in the area of hydrographics disagreed on the effect of the proposed channel on water circulation in the northern end of Bocilla Lagoon and Old Bocilla Pass, which is the north channel opening into northern Bocilla Lagoon. Witness Sperling for the Department opined that a major reduction in flows through Old Bocilla Pass channel would occur. Witness Tackney for the Petitioner acknowledged there would be some reduction in flow, and witness Olsen opined that a reduction in flow would occur, but there could also be an increase in circulation. Both witnesses Tackney and Olsen, in opining that a flow-through, enhanced circulation and flushing system may result from installing the channel, based that opinion to a significant degree, on their belief on the effects of wind on forcing water through the Pass and Bocilla Lagoon. No wind data or records were adduced however, to show the likely effects of wind on creating the Petitioner's desired "flow-through" system. Witness Sperling disagreed as to the significance of this flow-through effect, but there was no disagreement among the hydrographic experts that reduced flows through Old Bocilla Pass, which all acknowledged can occur to one degree or another, can result in increased sedimentation in Old Bocilla Pass, which can result in turn, in the need for increased maintenance dredging in Bocilla Lagoon and Old Bocilla Pass in the future. Maintenance dredging in Old Bocilla Pass may have to be increased if the proposed channel is constructed. The proposed channel itself will likely have to be periodically maintenance dredged as well. Maintenance dredging can cause environmental problems. Dredging activities result in the loss of marine habitat and the destabilization of marine sediments, with resulting increased turbidity and reduced photic effects, with concomitant detrimental effects on seagrasses and other bottom flora and fauna. Increased turbidity resulting from dredging and destabilization of sediments can directly adversely affect shellfish, including clams and oysters. Dredging impacts and siltation can negatively affect seagrass growth and water quality by increasing turbidity resulting in reduced photosynthesis in seagrass, by smothering the seagrass directly and by silting fauna and vegetation in adjacent productive grassbeds. Persons other than the officers and directors of Bocilla Waterways, Inc. own property and have riparian rights on the Old Bocilla Pass channel. These persons have in the past, and have the right in the future, to use Old Bocilla Pass for navigational purposes and could elect to maintenance dredge Old Bocilla Pass as they have in the past. If the proposed channel is constructed, there is obviously a more direct access and shorter water route between the waters of Bocilla Lagoon and Kettle Harbor. Water quality at times in Kettle Harbor has been worse than that in Bocilla Lagoon, especially in terms of low dissolved oxygen. If poorer water quality exists in Kettle Harbor due to low dissolved oxygen, an influx of red tide or some other cause, the construction of the proposed channel would increase the chance, by the more direct connection and increased flow in the southern end of Bocilla Lagoon, to contaminate the water of Bocilla Lagoon. The Public Interest Public opposition was expressed at the hearing, including that of ECOSWF, the Intervenor, some of whose members include people who live in the area of the proposed channel and use the involved waters. Local fishermen who harvest shellfish and finfish in Bocilla-Lagoon and Kettle Harbor, and use Old Bocilla Pass for navigation between Lemon Bay and Bocilla Lagoon, oppose the project, some of whom are members of the organized Fishermen of Florida, an association of approximately 25,000 members. Residents of Bocilla Lagoon and the immediate area, who habitually navigate Old Bocilla Pass, including local fishermen, have had little trouble navigating Old Bocilla Pass because they are familiar with the channel. Although the Petitioner alleges that the new channel is needed in part for the safety of people living on Bocilla Lagoon to assure quick access to the mainland in case of medical emergencies, the members of the public living on Bocilla Lagoon, (with one exception) and on surrounding areas of the island, do not wish such increased access for medical purposes. The island is presently reached from the mainland by either watercraft or helicopter. Formerly, there was a bridge connecting the island with the mainland which has since been destroyed, and not rebuilt. The residents living on Bocilla Lagoon, either full- time or part-time, buy their homes and choose to live there with knowledge of the present mode of access through Old Bocilla Pass, which is also the means they would achieve access to the mainland in case of medical emergencies or, alternatively, by helicopter transport or by transport over island roads to the ferry landing, with access to the mainland by ferry. The residents, in general, desire to maintain the isolation of life on the island as it presently exists and do not desire enhanced access between the island and the mainland, since part of the charm of having homes and living on the island is its isolation from the more populous mainland. Other than the testimony of Petitioner's witnesses, there was no testimony presented expressing any public need for the proposed channel, as for instance from public officials having knowledge of any medical or public health need for enhanced access to Bocilla Lagoon and the island. The proposed project is contrary to the public interest due to its adverse effects on seagrasses, shellfish, and water quality as delineated above. The adverse effects on seagrasses would result from the dredging itself and the destruction of a portion of the extant seagrass beds, and the resultant likelihood of poor survival rates in the attempted transplanting of seagrass as a replacement for that destroyed by the channel dredging. The proposed project is not in the public interest of those people with riparian rights on Old Bocilla Lagoon and northern Bocilla Lagoon, as there is substantial likelihood the proposed project will reduce flows through Old Bocilla Pass' channel with the resultant increased settling out of sediment and thus increased shoaling of that channel, which would concomitantly increase the need for maintenance dredging in Old Bocilla Lagoon and channel. Additional maintenance dredging and the possible negative effects of such additional dredging on marine, flora and fauna in Bocilla Lagoon and Old Bocilla Pass constitute an additional burden on these riparian owners, the bearing of which is not in their interest. The proposed project is also contrary to the public interest in that the proposed channel is deeper, wider and more direct as an entry into Bocilla Lagoon from Kettle Harbor and Lemon Bay, and would thus allow larger, deeper draft boats to enter Bocilla Lagoon with concomitant increased pollution from oils, greases and possible discharge of onboard sewage, which could have adverse environmental impacts on water quality in Bocilla Lagoon, as well as Kettle Harbor. The use of deeper draft, larger boats with larger propellers and more powerful engines could also result in damage to adjacent grassbeds in the vicinity of either ends of the proposed channel, either through direct propeller contact or through prop wash, when such boats are navigated in areas minimally deep enough to accommodate their draft. Since the installation of the proposed channel would result in a deeper, more readily used access to Bocilla Lagoon by larger boats with the remaining original channel usable also, at least for a time, there is a-substantial likelihood of increased residential development on riparian property around Bocilla Lagoon. This could have the result of reducing water quality in the lagoon, or potentially so, through septic tank leachate, stormwater runoff and other adverse environmental effects, such that the water in the lagoon traditionally approved for shellfish harvesting may be prohibited in the future.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered by the Department of Environmental Regulation denying both the variance application and the permit application sought by Bocilla Waterways, Inc. DONE and ENTERED this 24th day of January, 1985 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 24th day of January, 1985. COPIES FURNISHED: Kenneth O. Oertel, Esquire Segundo J. Fernandez, Esquire 646 Lewis State Bank Building Tallahassee, Florida 32301 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Thomas W. Reese, Esquire Environmental Confederation of Southwest Florida 123 Eighth Street, North St. Petersburg, Florida 33701 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The City currently operates a wastewater treatment plant providing "secondary treatment," and the effluent from that plant is discharged into Whitaker Bayou, an arm of Sarasota Bay. The Federal NPDES Permit and State Temporary Operating Permit for the wastewater treatment plant require the City to cease this discharge by July, 1988 due to pollution problems in the Bay, but the specific means through which this must be accomplished is not specified in the NPDES or Temporary Operating Permit. Any emergency discharge into Whitaker Bayou after July, 1988 would be violative of both state and federal- permits. On August 14, 1984, the City applied to the Department for a permit (File No. 58-0912689) for the following activities in the waters of the state in connection with the development of a 2,462 acre site as a wastewater spray irrigation facility; (1) the construction of a 36" diameter pipeline approximately 16 miles long from the existing wastewater treatment plant to the proposed sprayfield site with a total of 13 wetland crossings; (2) the construction of a wastewater retention pond; (3) the construction of a center pivot spray irrigation and underdrain system based on 15 center pivot points; (4) the creation of mitigation wetland areas of 20 acres; 33 acres, 72 acres, 27 acres and 46 acres: (5) the construction of a weir across East Ditch with an invert elevation to the top of the weir crest set at 34.5 feet to retain water in the existing on-site marsh system; (6) the construction of three other weir structures to control the run-off from the mitigation wetlands to East Ditch with crest elevations of 38.0 feet in the Northernmost area and two at 34.0 feet in the Southeast corner of the site, and one at 26.0 feet in the Southwest corner of the site with a crest elevation of 26.0 feet to control the run off to Howard Creek; (7) rerouting East Ditch 500 feet to the East; (8) rerouting Howard Creek and East Ditch into Vanderipe Slough through a new ditch with a berm; (9) closing the connection from Vanderipe Slough to the Myakka River; (10) replacing the existing double 30" culverts with a triple 60" culvert for the drainage crossing of the Florida Power and Light right-of-way through Vanderipe Slough; (11) the construction of a system of two-lane, shell-bed service roads on the project site with culverted wetland crossings; (12) dredging approximately 3,363,775 cubic yards of material and; (13) filling with approximately 1,578,850 cubic yards of material. This application, as well as plans and specifications, was prepared by a professional engineer, registered in Florida, and was deemed complete on May 1, 1985. On November 1, 1984, the City applied to the Department for a permit (File No. DC58-095055) to construct improvements to the wastewater treatment plant, a wastewater transmission line and a wastewater spray irrigation facility. This application was certified by a professional engineer, registered in Florida, as were plans and specifications. These facilities will permit the City to spray-irrigate 13 million gallons a day of chlorinated effluent and to discharge the effluent from sprayfield underdrains to on-site wetlands for further treatment. Surface run-off from these wetlands will flow into Howard Creek and East Ditch. This application was deemed complete on May 28, 1985. On January 24, 1985, the City filed with the Department a Petition for an Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). The Petition requests alternative criteria for Class III dissolved oxygen and nutrient standards in the on-site wetlands, which would receive a wastewater discharge from the sprayfield underdrains. Bishop and Kehn filed petitions with the Department challenging the application for a permit for activities in the waters of the state (File No. 58-0912689) and the Petition for An Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). Sefton and Peters filed petitions with the Department challenging the application for a permit for activities in the waters of the state (File No. 58-0912689). Myakka filed petitions with the Department challenging the application for a permit to construct wastewater treatment plant improvements, the wastewater transmission line and the wastewater spray irrigation facility (File No. DC58-095055) and the application for a permit for activities in the waters of the state (File No. 58-0912689). Myakka also filed a petition to intervene in the challenges filed by Bishop and Kehn to the Petition for an Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). In its prehearing stipulation filed on May 23, 1986, the Department noticed its change of position and intent to deny the City's applications. By separate stipulation executed May 12, 1986, following a status conference, the City and Myakka acknowledged that the Department would change its position in these proceedings, and would do so in the context of its prehearing stipulation. A formal administrative hearing to consider these matters was conducted from May 27 to June 5, 1986, at which evidence from the parties as well as public testimony was received. The City of Sarasota has proposed to expand and improve its sewage treatment plant from its present approved capacity of 9.1 million gallons per day (MOD) to an average daily flow of 13 MGD, with a peak capacity of 25 MGD. The City estimated it will not reach an average daily flow of 13 MGD until after the year 2000, although currently peak flow does reach 13 MGD. A transmission line is proposed for construction from the expanded sewage treatment plant, using city easements, to a city-owned parcel located in the eastern portion of Sarasota County. The parcel was acquired in 1981. The transmission line will be constructed underground using thirty-six inch force main, will cover a distance of approximately sixteen miles. and is designed to carry an average daily flow of 13 MGD. Effluent will be pumped through the transmission line from the treatment plant to the city-owned parcel. The line will not intersect water or storm mains, will not cross any canals or waterways subject to maintenance dredging, and will not allow for the introduction of stormwater or other sources of wastewater. The city-owned parcel which will be at the end of the transmission line was formerly known as the Hi-Hat Ranch. It is an area consisting of 2,462 acres which is currently comprised of wetlands, wooded hammocks and uplands used for cattle grazing, and is located fourteen miles east of the City of Sarasota and two miles south of Highway 780. The parcel has been fertilized to some extent in the past, although the amount and frequency of application has not been established. The City proposes to construct a spray irrigation project on the site to dispose of effluent from its sewage treatment plant. Myakka River State Park is located to the east of the proposed spray site a residential area known as Myakka Valley Ranches Subdivision is located to the south: and Vpper and Lower Lake Myakka, the Myakka River, and Vanderipe Slough are located south-east of the proposed spray irrigation site. East Ditch runs through the east side of the parcel and Howard Creek parallels the western boundary. Surface and ground water presently flows from the proposed spray site to the south-southwest into Howard Creek, a class III water body, and to the south-southeast into East Ditch, a class III water body, which then converge and flow into Vpper Lake Myakka, a class I water body and a designated Outstanding Florida Water. From Upper Lake Myakka, water flows into Vanderipe Slough, a class III water body, and Lower Lake Myakka; a class I water body and Outstanding Florida Water, via the Myakka River. The geologic materials presently found at the Hi-Hat Ranch Site are sedimentary in origin and consist of sands, silts, sandy phosphatic clays and limestone. There are 343 acres of natural herbaceous wetlands on the site, but only 140 acres have been determined by the Department to be "jurisdictional." Herbaceous wetlands are more sensitive to changes in water and nutrient levels than hardwood wetlands. The natural wetlands serve as fish and wildlife habitat, recharge areas, and as assimilation areas for nutrients. The proposed project will preserve 96 acres of natural wetlands on the East Ditch and create a total of 196 acres of artificial or mitigation wetlands. In order to provide the necessary degree of wetland treatment for the applied effluent, 150 acres of these mitigation wetlands, along with the 96 acres of preserved natural wetlands, for a total of 246 acres of mitigation and natural wetlands, will be utilized for treatment as part of the spray irrigation project. Plant communities on-site will be substantially and adversely altered in creating the mitigation wetlands, and this will alter wildlife habitat presently associated with the natural wetlands on-site. It was not established that wildlife presently on-site will be able to survive the project's affects and remain on- site. The City proposes to construct a spray irrigation project on the Hi-Hat Ranch property to dispose of sewage effluent. The project will consist of a holding pond into which effluent will initially flow from the transmission line, a pump station to transmit the effluent from the holding pond to the sprayfield where it will be sprayed on fifteen spray sites, an underdrain system under the spray sites to carry water that has filtered through the soils to drainage ditches which will then carry the water to four of five artificial or mitigation wetland areas on the site. As indicated above, a total of 246 acres of mitigation and natural wetlands will be utilized to provide the necessary degree of wetlands treatment for the applied effluent. From the wetlands areas, the flow will be discharged into Howard Creek and East Ditch. After intersecting East Ditch, a diversion of Howard Creek is proposed so that it will flow directly into Vanderipe Slough, instead of its current course into the Myakka River State Park and Upper Lake Myakka. (a) The proposed holding pond will encompass 120 acres and consist of three cells. Its design is based on the City's review of 72 years of climatological data to determine the greatest number of consecutive days that rainfall will prevent spraying. Its purpose will be to store wastewater initially entering the site from the transmission line prior to being pumped to the spray fields, and to even out surges in this in- flow. Additionally, some nutrient removal will take place through volatilization and settling. Test soil borings of the holding pond site, excluding its eastern side, indicate that a natural clay layer, along with additional clay to be placed on site, will form a barrier layer under the holding pond and thereby result in a minimal average permeability rate of .03 inches per day. Insufficient borings were done in the northeastern part of the holding pond to make a determination of permeability. There will be one large cell to allow a longer detention time of 8 1/2 days at 13 MGD, and two smaller cells with a detention time of 4 1/3 days each at 13 MGD. In-flow of effluent from the transmission line will be alternated among the cells depending on the rate of flow and the water level in the cells. Each cell is designed to retain two feet of water at all times to discourage mosquitos and aquatic weeds, with a designed maximum depth when in use of eight feet. The maximum operating capacity of the holding pond is approximately 220 million gallons, which represents approximately 17 days of flow from the treatment plant at 13 MGD assuming no rainfall into the pond during this time. In the event that the holding pond is at maximum capacity and can accept no more effluent, the City proposes to either divert the effluent for discharge into Whitaker Bayou, or to spray directly onto the spray fields, by passing the holding pond. The holding pond is designed with walls that will have an additional three feet elevation over the designed maximum water depth of eight feet. but there is a potential for overflow if water depth exceeds eight feet. If the holding pond were to be filled to the top of the side walls, it would then, hold four hundred million gallons of effluent. No emergency discharge device has been provided in the design of the holding pond, although it is required by the Department's Land Application Design Manual. A potable water well will be placed onsite within 500 feet of the holding pond, although such placement is prohibited by the Land Application Design Manual. (a) Effluent will be pumped to the fifteen spray sites from the holding pond using a pumping station located next to the holding pond and a distribution system connected to fifteen center pivot irrigation systems. The pump station has a design capacity to pump 13 MGD of effluent in 16 hours. Effluent will alternately be sprayed on the fifteen sites by means of a rotating, center pivot spray. The system is designed to average 2.6 inches of spray per week on each spray site. The Department's Land Application Design Manual requires that no more than 2 inches be sprayed per week. A crop of Coastal Bermuda grass, supplemented with winter rye, will be grown on each spray site. An underdrain system will be installed under each spray site to receive sprayed effluent that has filtered through the soils, and to maintain the water table at three feet, which will be below the root system of the Bermuda and rye grasses and thereby provide proper soil conditions and aeration for root growth. The fifteen spray sites will encompass a total area of 1,296 acres. The City has not provided the Department with an operational plan for the sprayfield to address loading and resting periods, harvesting periods and the spray rotation schedule. It has not been established by competent substantial evidence that the City can operate the sprayfield to allow in the same operation harvesting of the grass crop, drying of the mitigated wetlands, prevention of soil saturation and sheet flow of effluent during rainfall events and maintenance of the hydrologic balance of the system. An underdrain system will be constructed using perforated polyester piping enveloped in a fabric and surrounded by course sand. The piping will be spaced between 75 and 150 feet apart. It is designed to receive 13 MGD while maintaining the three foot water table. The underdrains will empty into a series of ditches located throughout the project site which will then carry the effluent, along with rain water runoff to four of the five mitigation wetlands. The fifth mitigation wetland and natural wetlands remaining on-site will receive stormwater runoff only. Additionally, sheet flow will occur in an area composed of wetlands and upland vegetation along East Ditch. A five year storm was considered in the design of culverts in the ditches receiving underdrain discharge. (a) The City proposes to construct the mitigated wetland areas to replace natural wetlands that will be destroyed in the preparation and construction of the spray irrigation project. All of the mitigation wetlands will be marsh habitats, but a non-marsh, woody wetland will be destroyed in the area of the holding pond which will therefore not be mitigated. Some effluent treatment will take place in the mitigated wetlands which will also serve to control the flow of effluent and runoff leaving the project to the southwest, south and southeast. The mitigated wetlands have been designated for a 24 hour storm event that would be expected to occur once in 25 years. A system of ten foot wide wooden weirs with inch notches will be used to control the flow of water through the mitigated wetlands. Wooden boards will be placed in the notches to regulate the flow, but it has not been shown that the hydroperiods or detention times of the pre-construction natural wetlands will be duplicated in the mitigated wetlands. It appears that the detention time necessary for effluent treatment is inconsistent with the natural wetland hydroperiods. Currently the natural wetlands on site are dry for periods throughout the year: however, the mitigated wetlands are designed to have a constant two foot minimum depth and there are no plans to periodically and regularly draw-down the mitigated wetlands. Construction of the mitigated wetland areas will take several weeks, during which time vegetation presently on site will be removed by excavation, the land dried and contoured, berms constructed, and a mulching technique will then be used in an attempt to replace vegetative species found in the natural wetlands. However, testimony shows that a mulching technique is only successful if it is completed in two to three weeks, including establishment of a correct seasonal hydroperiod, and also only if a weed control program is carried out for two years. In this case it is unlikely that construction and mulching could be completed in three weeks, and the City has note proposed an effective weed control program. Berms to be constructed along the southern and western end of the project site around the mitigated wetlands will be ten feet in width at their top and approximateIy three feet above existing grade, or approximately eight feet above the bottom of the mitigated wetland: they will be constructed of clay and sand materials found on site. Reasonable assurance has not been given that the berms as designed will prevent uncontrolled runoff of water to neighboring land to the south and west of the project site. It has also not been shown with reasonable assurance that the mitigation wetlands will replicate plant zonation or community, or the type, function or form of all existing natural wetlands to be destroyed. Finally, reasonable assurance has not been given that the project will preserve a large hardwood swamp, primarily pop ash, on the eastern half of the site, or that an oak hammock in the northeast corner of the site will be saved from flooding as a result of the project. Flows leaving the mitigated wetlands will empty into Howard Creek and East Ditch. Culverts at the outfalls into Howard Creek and East Ditch were designed using a 25 year, 24 hour storm event. These water bodies are currently clear flowing with no algae. The rate of flow through Howard Creek and East Ditch varies currently from a slight trickle to flood conditions due to seasonal rainfall variations. The spray irrigation project will increase the flow into Howard Creek and East Ditch in low flow conditions. The City contends the project should reduce storm discharges and nutrient loading into these water bodies when it is operating under design conditions, but this has not been established by competent substantial evidence. The areas of Howard Creek, East Ditch and Vanderipe Slough which the City seeks to use in the project are privately owned or state property. The City currently has no legal interest in, or authority to use: the privately owned areas of Howard Creek in Myakka Valley Ranches Subdivision (MVRS) for transmission of its discharge from the spraysite to the Howard Creek diversion inside Myakka River State Park: the privately owned areas and drainage way of East Ditch in MVRS for effluent transmission from the spraysite to the Howard Creek diversion inside Myakka River State Park: any portion of Myakka River State Park as part of its wastewater disposal program: or the privately owned areas of Vanderipe Slough for which it seeks permits for the transmission and treatment of sewage effluent. The City proposes to remove a dike, constructed almost fifty years ago, which currently prevents Howard Creek from flowing directly into Vanderipe Slough, and divert the Creek from its present course which is into Upper Lake Myakka. This would restore the natural course of the Creek into the Slough, and eliminate any flow from the Creek into Upper Lake, by constructing a berm between the Creek and Upper Lake within the state park. However, this diversion would destroy a pop ash swamp, some of which is inside the state park, and no mitigation is proposed for this loss. The City has not established that the flow lost by this diversion will not adversely affect water quality of Upper Lake Myakka, or wetlands in the state park. Vanderipe Slough encompasses an area of approximately 500 acres, a portion of which is within the Myakka River State Park, and is therefore an Outstanding Florida Water. At various times of the year, depending upon seasonal rainfall, it is dry to a significant extent, or else is completely flooded such that it overflows Shep's Island and joins with the Myakka River as they flow into Lower Lake Myakka. It is a nutrient limited system with substantial vegetative matting in normal flows. Large areas of the Slough are herbaceous wetlands. The project will cause more water to flow into the Slough in low and medium flow conditions, and under high flow conditions there will be at least as much flow into the Slough as at the present. Water carrying the entire nutrient load of Howard Creek and East Ditch will enter the Slough through a channel that will be cut in its northern end, and will then flow southward at a relatively slow velocity, with a detention time in the Slough of approximately 2.8 days. Channelization or scouring in the Slough will not occur under design conditions due to this relatively slow flow velocity. Flow velocities will be greater through the artificial channel and rip-rap will be used to avoid scouring at this point of entry into the Slough. Approximately 280 acres of Vanderipe Slough will be regularly, and almost continuously, inundated after the project. Under high flow conditions from 400 to 500 acres will be inundated. Nitrogen levels will increase and be converted to usable forms, with a resulting increase in plant growth and decrease in dissolved oxygen content of the water. This is reasonably expected to cause and contribute to existing water quality violations in the Slough, and alter its use as a wildlife habitat to a more aquatic habitat due to increased water levels. Several obstructions or hindrances to the flow of water through the Slough currently exist. These include culverts thirty and forty-two inches wide, which the City proposes to replace with three sixty inch culverts, and berms two to three feet above the Slough floor which are six to ten feet in width. The City has not proposed removal or modification of all obstructions to flow through the Slough. Elevations in the area range from approximately twenty feet above sea level at the sewage treatment plant, with a twenty foot rise along the transmission line to an average elevation of approximately forty feet at the project site, to an elevation of approximately thirteen feet at the present dike which diverts Howard Creek directly into Upper Lake Myakka. Elevations along the eastern edge of Myakka Valley Ranches average twenty feet. Howard Creek falls sixty Eeet in elevation from a point ten miles upstream to the point at which it presently enters Upper Lake Myakka. There is no set back along the southern edge of the property to protect property owners from excessive groundwater flows from the project site which could occur in flood conditions. Sheet flow from the site to other property is likely to occur if watertables in the sprayfield are raised above three feet due to spraying, rainfall or increased groundwater levels. Several Petitioners and members of the public who testified expressed concern about increased flooding and stormwater runoff as a result of the project. The addition of the City's discharge from the sprayfield will impair and adversely affect drainage of property in Myakka Valley Ranches Subdivision through East Ditch, Howard Creek and Vanderipe Slough, and will reasonably be expected to cause flooding. Wetland areas on the eastern boundary of the site may also overflow and discharge into the state park. There is no competent substantial evidence that the City will control increased mosquito populations which will result from flooding and which may cause a health problem and adversely affect the use of these water bodies for recreational and conservation purposes. Security around the spray field site will be provided by three strands of barbed wire on the east, west and north sides of the parcel. On the south side next to Myakka Valley Ranches Subdivision, a six foot high hog wire fence with three strands of barbed wire above it will provided. Gates at all entrance points will allow for locking. The property will also be posted with "no trespassing" signs. This does represent adequate restriction of public access to the site. There was extensive testimony concerning the current water quality and nutrient levels existing on the project site and surrounding water bodies, and the affect of this spray irrigation project on existing wetlands and surrounding waters. In its initial application, the City predicted effluent leaving the treatment plant would contain 12.4 mg/1 nitrogen. In fact, the current average concentration of nitrogen in effluent leaving the plant is 20 mg/1. The stronger concentrations in the City's effluent will continue after completion of the project. Effluent leaving the plant will have achieved basic disinfection, with 90 per cent or more of the Biological Oxygen Demand (BOD) and Total Suspended Solids (TSS) having been removed prior to discharge into the holding pond. Basic disinfection produces effluent containing up to 200 colonies of fecal coliform per 100 ml. Chlorine contact in the transmission line will reduce bacteria and viruses in the effluent entering the holding pond, but fecal coliforms will still be present in the effluent on- site. Total nitrogen in the holding pond effluent will be volatized, assimilated and absorbed to a degree in the sprayfields. However, the City has incorrectly concluded that the total nitrogen in the underdrain discharge will be in trace amounts, since its analysis began with incorrect assumptions about nitrogen loading from the plant, and also assumed excessive nitrogen uptake from sprayfield grass crops. Nitrogen concentration from the underdrains will be as high as three mg/l. At this level, the underdrain discharge will cause or contribute to new violations of water quality standards for nutrients and dissolved oxygen in the natural and mitigated wetlands. In order to determine if a particular wetland can assimilate nutrient loading, a water budget for that wetland must be prepared. The City has failed to provide adequate wetland water budgets from which it could be determined if the wetlands will assimilate nutrients since none of the water budgets proposed or relied upon by the City accounted for the addition of stormwater or groundwater flow onto the site from offsite. The discharge from the wetlands will introduce nutrients into waters of the state in Howard Creek, East Ditch, Vanderipe Slough and Lower Lake Myakka causing further nutrient enrichment of waters presently high in nutrient concentrations and sensitive to further concentrations and loadings. Sewage effluent will be the only water pollution source affecting these water bodies, for which the City has not sought site specific alternative criteria. The addition of discharge from the spraysite will result in a lowering of dissolved oxygen levels in Howard Creek and East Ditch causing new, or contributing to continuing, violations. These impacts on water quality will be measurable. Howard Creek, East Ditch, and Vanderipe Slough have existing dissolved oxygen violations, and the diversion of Howard Creek and East Ditch into the Slough will cause or contribute to existing DO violations in the Slough. The QUAL/2E Model, as used by the City in this case to predict post-project levels of dissolved oxygen, is not reliable because it is only appropriate for use in determining dissolved oxygen levels in a flowing riverine system, which this is not, and also because there was an insufficient data base. Separating the holding pond from the existing groundwater is a natural clay layer which will be pierced at some points by the excavation of the holding pond. This will allow seepage from the holding pond into the groundwater and the City has not shown that this seepage will meet primary and secondary drinking water standards. Various endangered species are now found in Vanderipe Slough, and the project will adversely impact the habitat of these species which include woodstorks, bald eagles and Florida panthers. Residents of Myakka Valley Ranches, including the Petitioners and several members of the public who testified, currently use portions of Howard Creek, Upper LaXe Myakka and Vanderipe Slough for canoeing, fishing, birdwatching, camping, hunting, boating and picnicking, and the project will adversely impact on such use due to the introduction of effluent and nutrient loading into these areas, as well as the potential for flooding. Upper and Lower Lake Myakka and the Myakka River connecting these two lakes are all located in the Myakka River State Park, and are in state ownership. The City has not affirmatively demonstrated a net improvement to Upper Lake Myakka as a result of the Howard Creek diversion and the project. To the contrary, the City's use of the state park will adversely affect the conservation related uses of the state park, and recreational use of Upper Lake Myakka as it presently exists due to the elimination of boating access from Howard Creek. The City published notice of the Department's Intent to Issue the construction permit in the February 14, 1986 edition of the Sarasota Herald Tribune, a newspaper of general circulation in Sarasota County. The notice of Intent to Issue the application for a wetlands exemption was published in the June 21, 1985 edition of the Sarasota Herald Tribune. The notice of Intent to Issue the dredge and fill permit application was published in the January 16, 1986 edition of the Sarasota Herald Tribune. The only hearing provided for was the opportunity for this formal administrative hearing, but public testimony was received in this hearing. Myakka timely filed petitions under Sections 120.57(1) and 403.412(5), Florida Statutes, concerning the dredge and fill, and construction permit applications. The individual Petitioners timely filed petitions under Section 120.57(1), Florida Statutes, challenging the application for wetlands exemption since their petitions were filed on July 8, 1985, the first available business day after July 5, 1985, on which the Department's offices were closed; and which would otherwise have been the last day for filing such petitions. Myakka subsequently timely intervened in the individual Petitioners' proceeding under Sections 120.57(1) and 403.412(5), Florida Statutes. Myakka is a not-for-profit Florida corporation consisting of approximately 300 families who own property to the south of the project site. In addition, Myakka owns portions of Howard Creek which the City proposes to use to transmit effluent discharged from the project site, and also owns a conservation area immediately adjoining Myakka River State Park through which Howard Creek flows. This is used by residents and members, including the individual Petitioners, for recreational and conservation purposes. Myakka also has exclusive drainage rights for portions of East Ditch which the City proposes to use to transmit effluent from the spray site. The individual Petitioners are residents of Myakka Valley Ranches Subdivision whose homes and property abut the southern border of the project site, Howard Creek, East Ditch, Vanderipe Slough and the conservation area referred to above and who will therefore be substantially affected by the City's project due to its adverse affects on these water bodies and conservation area. Myakka has established that one of its main purposes and interests is to protect water quality, wildlife and other natural resources in Howard Creek, East Ditch, Vanderipe Slough, and Upper and Lower Lake Myakka. Sarasota County's local pollution control ordinance requires advanced wastewater treatment (AWT) which is: five milligrams per liter (mg/l) or less of Biological Oxygen Demand (BOD): five mg/1 or less of suspended solids: three mg/1 of total nitrogen as nitrogen: and one mg/1 of total phosphorous as phosphorous. The City's spray irrigation project is intended to achieve AWT prior to discharge into state waters but it has not been established by competent substantial evidence that it will meet this goal. Secondary treatment currently provided reduces the BOD and suspended solids concentrations in the effluent discharged into Whitaker Bayou to 20 mg/1. As applied for, the City's project places portions of several sprayfields and some of the mitigated wetlands within the 500 foot vegetated buffer zone which has been required for the spraysite by Sarasota County. (a) The findings of fact set forth above are made after considering the evidence introduced, as well as the qualifications, credibility and demeanor of all witnesses who testified. Specifically, the expert testimony of the following witnesses was deemed particularly persuasive and credible: George T. Baragona, expert in hydrology William M. Kutash, expert in biology with special expertise in wetland biology, mitigation of natural wetlands, wetland hydroperiods and water quality impacts in state waters Larry Schwartz, expert in wetland ecology and wetland modeling David Bickner, expert in wetland ecology; and Jan Mandrup-Poulsen, expert in water quality modeling and analysis. The testimony of Donald Deemer, who was recognized as an expert in sanitary engineering with special expertise is waste water treatment and land treatment of wastewater, was outweighed, rebutted and discredited through the testimony of Jan Mandrup-Poulsen and Paul Larsen, who was accepted as an expert in environmental engineering. The testimony of Andrew Huggins, who was recognized as an expert in water quality modeling with special expertise in water chemistry, hydrology and ecology necessary to discuss modeling, was outweighed, rebutted and discredited through the testimony of Larry Schwartz. Geroge Milton, who was accepted as an expert in civil and sanitary engineering with special expertise in wastewater treatment facility design and operation, as well as Douglas Taylor; Superintendent of the City's Treatment Plants, presented credible testimony concerning the City's sewage treatment plant, the proposed transmission line and design of the spray irrigation system. John E. Garlanger, who was accepted as an expert in civil engineering and geology with special expertise in experimental and applied soil mechanics, soil exploration and testing, and land application of water and wastewater, testified regarding his recommendations about the holding pond and underdrains, as well as site soil characteristics: however, the weight given his testimony was lessened since he testified he was not familiar with the City's applications at issue in this case and also did not know if the project was designed consistent with his recommendation. Donald Mauer, who was accepted as an expert in sanitary and civil engineering, testified about his design of the sprayfield, as well as his opinions regarding the treatment plant, transmission line and other off-site project activities: however, his rebuttal testimony lessened the weight given to his testimony generally. The testimony of the following expert witnesses was considered but given less weight due to the witnesses' lack of site specific data, personal knowledge or experience on the site and conflicting testimony of other witnesses; Lloyd Horvath, who was accepted as an expert in hydrology and civil engineering with expertise in water resource modeling; Andre Clewell, expert in botany with special expertise in restoration of wetland habitats and aerial photo interpretation of vegetation; Eduardo Aguilar, expert in geology and groundwater hydrology: and Forrest Dierberg, expert in environmental chemistry with special expertise in wetland biology and chemical processes. All additional testimony and evidence presented by the parties and through public testimony was considered and weighed in the preparation of these findings of fact.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order denying the City of Sarasota's Application for Wetlands Exemption (VE-58-206), Application for Construction Permit (DC-58-095055) and Application for Dredge and Fill Permit (File No. 58-092689). DONE and ENTERED this 31st day of July, 1986, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31 day of July, 1986. APPENDIX Rulings on Individual Petitioners' Proposed Findings of Fact. 1,2 Adopted in Finding of Fact 30. Rejected since it is not based on competent substantial evidence. Adopted in Finding of Fact 22. Rejected since it is not based on competent substantial evidence. Rejected as irrelevant. Adopted in Finding of Fact 23. 8,9 Rejected as irrelevant and otherwise not based on competent substantial evidence. Adopted in Findings of Fact 18, 24, 25. Adopted in Finding of Fact 34. Adopted in Finding of Fact 27. Rejected in Finding of Fact 14. 14-17 Rejected as unnecessary and cumulative. 18,19 Adopted in Finding of Fact 14. 20 Rejected since it is not based on competent substantial evidence. Rulings on Myakka's Proposed Findings of Fact. 1,2 Adopted in Finding of Fact 5. Adopted in Findings of Fact 2, 3, 4. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Findings of Fact 1, 7. Adopted in Finding of Fact 7. 10-13 Adopted in Finding of Fact 19. 14-15 Rejected since they are not based on competent substantial evidence. Adopted in Finding of Fact 19. Adopted in Finding of Fact 7. 18,19 Rejected as irrelevant and unnecessary. 20-22 Adopted in Finding of Fact 1. 23,24 Rejected as irrelevant and unnecessary. 25 Adopted in Finding of Fact 1. 26-28 Rejected as irrelevant and unnecessary. 29-31 Adopted in Finding of Fact 33. 32-33 Rejected as irrelevant and unnecessary. 34-36 Adopted in Finding of Fact 9. 37,38 Adopted in Finding of Fact 14. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 14. 41,42 Adopted in Finding of Fact 13. 43-45 Adopted in Finding of Fact 14. 46-48 Adopted in Finding of Fact 13. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 13. 51-56 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 13. Adopted in Finding of Fact 27. Adopted in Finding of Fact 24. Rejected in Finding of Fact 2r 3. Rejected since it is not based on competent substantial evidence. 62,63 Rejected as irrelevant and unnecessary. 64 Adopted in part and rejected in part in Finding of Fact 17. 65,66 Adopted in Finding of Fact 17. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 13. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17. Adopted in Finding of Fact 18. Rejected as cumulative. Rejected as irrelevant and unnecessary. 74,75 Adopted in Finding of Fact 13. Rejected in Finding of Fact 26. Adopted in Finding of Fact 13. 78-80 Rejected as irrelevant, unnecessary and otherwise not based on competent substantial evidence. 81 Adopted in Findings of Fact 11, 12. 82,83 Rejected as irrelevant and unnecessary. 84 Adopted in Finding of Fact-21. 85-87 Adopted in Finding of Fact 11. 88-91 Adopted in part in Finding of Fact 18, but otherwise rejected as unnecessary and cumulative. 92-95 Adopted in Finding of Fact 17. 96-97 Adopted in part in Finding of Fact 17, but otherwise rejected as unnecessary. 98-99 Adopted in Finding of Fact 17. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 27. Rejected as irrelevant and unnecessary. 103-106 Adopted in Finding of Fact 27. Adopted in Finding of Fact 6. Adopted in Finding of Fact 27. 109,110 Rejected as irrelevant and not based on competent substantial evidence. 111 Adopted in part in Finding of Fact 17. 112-120 Adopted in Finding of Fact 27. 121-126 Rejected as unnecessary and cumulative. 127 Adopted in Finding of Fact 27. 128-130 Rejected as unnecessary. 131-168 Adopted in Finding of Fact 27. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Finding of Fact 24. 172-174 Adopted in Finding of Fact 27. 176-179 Rejected as irrelevant, unnecessary, and cumulative. 180 Adopted in Finding of Fact 18. 181-184 Rejected as irrelevant, unnecessary, and cumulative. Rejected as unnecessary. Rejected in Finding of Fact 20. 187,188 Adopted in Finding of Fact 20. Rejected as unnecessary and cumulative. Adopted in Finding of Fact 21. Adopted in Finding of Fact 23. 192,193 Adopted in Finding of Fact 27. 194 Adopted in Finding of Fact 25. 195-198 Adopted in Finding of Fact 20. 199,200 Rejected as irrelevant and unnecessary. 201 Adopted in Finding of Fact 9. 202,203 Adopted in Finding of Fact 30. 204-206 Adopted in Finding of Fact 21. 207 Rejected as cumulative and unnecessary. 208-211 Adopted in Findings of Fact 21, 22, 27. 212,213 Adopted in Finding of Fact 23. 214 Rejected as irrelevant and cumulative. 215-218 Adopted in Findings of Fact 21. 22, 27. 219-223 Adopted in part in Finding of Fact 27, but otherwise rejected as unnecessary, cumulative and otherwise not based on competent substantial evidence. 224,225 Rejected as irrelevant and unnecessary. 226,227 Adopted in Finding of Fact 34. 228 Rejected as not based on competent substantial evidence. 229,230 Rejected as cumulative. 231-233 Rejected as not based on competent substantial evidence. 234,235 Adopted in Finding of Fact 28. 236 Adopted in Finding of Fact 30. 237-243 Adopted in part in Finding of Fact 28-30, but otherwise rejected as cumulative and not based on competent substantial evidence. 244-246 Rejected as cumulative and otherwise not based on competent substantial evidence. 247,248 Adopted in Finding of Fact 31. 249-259 Adopted in Findings of Fact 2-5, 32. 260-262 Adopted in Finding of Fact 32. 263 Adopted in Finding of Fact 29. 264 Adopted in Finding of Fact 32. 265-267 Adopted in Finding of Fact 29. 268,269 Adopted in Finding of Fact 32. Adopted in Finding of Fact 25. Adopted in Finding of Fact 29. Adopted in Findings of Fact 25. 29, 32. Adopted in Finding of Fact 19. Adopted in Findings of Fact 19, 29. Adopted in Finding of Fact 29. 276,277 Adopted in Finding of Fact 25. Adopted in Finding of Fact 22. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 25. 281-283 Rejected as irrelevant and unnecessary. 284 Adopted in Finding of Fact 29. 285 Adopted in Findings of Fact 29, 32. 286 Adopted in Findings of Fact 19. 32. 287,288 Rejected as unnecessary and otherwise not based on competent substantial evidence. 289-296 Rejected as irrelevant and unnecessary. Rulings on City's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as irrelevant. Adopted in Finding of Fact 1. Adopted in Finding of Fact 33. 5 Rejected as irrelevant and unnecessary. 6-11 Adopted in Finding of Fact 1. 12-14 Adopted in Finding of Fact 6. 15 Rejected as irrelevant. 16 Adopted in Finding of Fact 7. 17 Rejected as irrelevant. 18 Adopted in Findings of Fact 27, 33. 19-21 Adopted in Finding of Fact 27. 22-30 Rejected as irrelevant, unnecessary and otherwise contrary to Finding of Fact 27. 31 Rejected as not based on competent substantial evidence. 32,33 Adopted in Findings of Fact 2, 3, 7. 34,35 Adopted in Finding of Fact 6. 36-44 Rejected as unnecessary and otherwise not based on competent substantial evidence. 45-52 Adopted in Finding of Fact 7. 53-55 Rejected as unnecessary. 56-58 Adopted in Finding of Fact 8. 59 Rejected as irrelevant and unnecessary. 60-62 Adopted in Finding of Fact 8. 63,64 Rejected as unnecessary. 65 Adopted in Finding of Fact 11. 66-69 Rejected as irrelevant and otherwise not based on competent substantial evidence. 70-84 Adopted in Finding of Fact 13. Rejected as irrelevant and otherwise not based on competent substantial evidence. Adopted in Finding of Fact 13. 87-92 Adopted in Finding of Fact 27. Rejected as unclear. Adopted in Finding of Fact 27. 95-100 Adopted in Finding of Fact 14. 101 Rejected in Finding of Fact 14. 102-104 Adopted in Finding of Fact 14. Rejected as irrelevant. Adopted in Finding of Fact 15. Adopted in Finding of Fact 13. Adopted in Finding of Fact-16. Adopted in part and rejected in part in Finding of Fact 27. 110,111 Rejected in Finding of Fact 27. 112 Rejected as irrelevant. 113-118 Rejected in Finding of Fact 27. 119,120 Adopted substantially in Finding of Fact 11. Adopted in Finding of Fact 16. Adopted in Finding of Fact 2. Adopted in Finding of Fact 17. 124,125 Rejected as not based on competent substantial evidence and otherwise irrelevant. 126-130 Adopted in part in Finding of Fact 2. 16, but otherwise rejected as cumulative and unnecessary. 131-135 Adopted in part in Finding of Fact 17 but otherwise rejected as cumulative and unnecessary. 136-140 Rejected in Finding of Fact 17. Rejected in Findings of Fact 11, 17. Adopted in Finding of Fact 16. 143-148 Rejected in Finding of Fact 27 and otherwise unnecessary. 149 Adopted in Finding of Fact 27. 150,151 Rejected in Finding of Fact 27. Adopted in Findings of Fact 17, 18. Adopted in Finding of Fact 17. Adopted in part and rejected in part in Finding of Fact 18. 155,156 Rejected in Finding of Fact 17. Rejected as irrelevant and unnecessary. Rejected in Findings of Fact 13, 14. Rejected as irrelevant. Rejected as irrelevant and otherwise not based on competent substantial evidence. Adopted in Finding of Fact 26. Rejected as unnecessary and cumulative. 163-165 Rejected as not based on competent substantial evidence. 166-169 Adopted in Finding of Fact 20. 170-173 Rejected as irrelevant, unnecessary and not based on competent substantial evidence. Adopted in part and rejected in part in Finding of Fact 20. Adopted in Finding of Fact 23. Adopted in Finding of Fact 9. Rejected in Finding of Fact 27. 178-188 Rejected in Finding of Fact 27, and otherwise irrelevant, unnecessary and not based on competent substantial evidence. 189,190 Adopted in Finding of Fact 18. Adopted in Finding of Fact 9. Adopted in Finding of Fact 20. 193-195 Rejected as unnecessary and otherwise not based on competent substantial evidence. 196 Adopted in Finding of Fact 9. 197-199 Adopted in Finding of Fact 21. 200,201 Rejected as irrelevant, unnecessary and not based on competent substantial evidence. 202-206 Rejected in Finding of Fact 27, and otherwise irrelevant and unnecessary. 207,208 Adopted in part in Finding of Fact 21. 209-217 Rejected in Findings of Fact 21, 22, 27, and otherwise irrelevant and unnecessary. Rejected in Finding of Fact 21. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 9. Rejected as cumulative and unnecessary. 222-224 Rejected in Finding of Fact 27. and otherwise irrelevant and unnecessary. 225 Rejected as unnecessary and not based on competent substantial evidence. 226 evidence. Rejected as not based on competent substantial 227,228 Rejected as irrelevant. 229-232 Adopted in Finding of Fact 3. 233 Rejected as irrelevant. 234,235 evidence. Rejected as not based on competent substantial 236 Adopted in Finding of Fact 3. 237,238 Adopted in Finding of Fact 5. 239 Adopted in Finding of Fact 3. 240-243 Rejected as irrelevant. 244-246 Adopted in Finding of Fact 31. 247-250 Adopted in Finding of Fact 4. 251 evidence. Rejected as not based on competent substantial 252,253 Adopted in Finding of Fact 5. 254,255 Rejected as irrelevant and otherwise not based on competent substantial evidence. 256,257 Adopted in Finding of Fact 31. 258-260 Adopted in Finding of Fact 2. 261 Rejected as irrelevant. 262 Adopted in Finding of Fact 2. 263 Adopted in Finding of Fact 5. 264 Adopted in Findings of Fact 2, 11. 265-267 Rejected as irrelevant. 268 Adopted in Finding of Fact 5. 269-272 Rejected as irrelevant and unnecessary. 273,274 Adopted in Finding of Fact 31. 275-278 Rejected as irrelevant, unnecessary and not based on competent substantial evidence. 279-284 Rejected in Finding of Fact 32. Rulings on the Department's Proposed Findings of Fact. 1 Adopted in Finding of Fact 5. 2,3 Adopted in Findings of Fact 2. 3, 4. 4 Adopted in Finding of Fact 7. 5-8 Adopted in Finding of Fact 9. 9 Adopted in Finding of Fact 21. 10-12 Adopted in Finding of Fact 1. 13 Rejected as irrelevant and unnecessary. 14,15 Adopted in Finding of Fact 33. 16-23 Rejected as irrelevant and unnecessary. Rejected since this is a conclusion of law rather than a proposed finding of fact. Rejected as unclear. Adopted in Finding of Fact 14. 27-30 Adopted in Finding of Fact 13. Adopted in Finding of Fact 26. Adopted in Finding of Fact 17. Rejected as speculative and not based on competent substantial evidence. Adopted in Finding of Fact 24. 35,36 Adopted in Finding of Fact 13. 37,38 Rejected as unnecessary. Adopted in Finding of Fact 14. Adopted in Finding of Fact 13. Rejected as unnecessary. Adopted in Finding of Fact 11. Adopted in part in Finding of Fact 17, but otherwise rejected as irrelevant and unnecessary. Adopted in Findings of Fact 11, 12. Rejected as unnecessary. Adopted in Finding of Fact 16. 47,48 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 17. Rejected as irrelevant and unnecessary. 51,52 Adopted in Finding of Fact 17. 53-55 Rejected as cumulative and unnecessary. 56-59 Adopted in Finding of Fact 17. Rejected as unnecessary and cumulative. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 17. 63,64 Adopted in Finding of Fact 20. 65-73 Adopted in Finding of Fact 17. Adopted in Finding of Fact 22. Rejected in Finding of Fact 20. 76,77 Adopted in Finding of Fact 21. 78-82 Adopted in Finding of Fact 22. Adopted in Finding of Fact 8. Rejected in Finding of Fact 8. Adopted in Finding of Fact 21._ Adopted in Finding of Fact 27. 87,88 Rejected as a conclusion of law rather than a proposed finding of fact. 89,90 Rejected as unnecessary and cumulative. 91-93 Rejected as unnecessary. 94 Adopted in part in Finding of Fact 21. 95,96 Adopted in part in Finding of Fact 22. Rejected as cumulative and unnecessary. Adopted in Findings of Fact 21, 22. 99-103 Adopted in Finding of Fact 27. Adopted in Finding of Fact 22. Rejected as unclear. Adopted in Finding of Fact 22. 107,108 Adopted in Finding of Fact 27. 109 Adopted in Finding of Fact 22.. 110,111 Adopted in Finding of Fact 27. 112-114 Rejected as unnecessary and cumulative. 115-117 Adopted in Finding of Fact 11. 118 Rejected as cumulative. 119-121 Adopted in Finding of Fact 27. 122 Adopted in Finding of Fact 6. 123-136 Adopted in Finding of Fact 27. COPIES FURNISHED: Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Greg D. Sefton 5781 Old Ranch Road Sarasota, Florida 34241 Edward P. de la Parte, Jr. Attorney at Law 705 East Kennedy Boulevard Tampa, Florida 33602 Ralph A. Kehn Route 1, Box 74-170 Rockinghorse Lane Sarasota, Florida 34241 Wyatt S. Bishop Route 1, Box 74-203 Sarasota, Florida 34241 C. Anthony Cleveland, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Judith Kavanaugh, Esquire 2831 Ringling Boulevard Suite C209 Sarasota, Florida 33577 Dorisanna L. Peters 5793 Old Ranch Road Sarasota, Florida 34241
The Issue The issue to be determined is whether Consumptive Use Permit No. 2-083-91926-3, and Environmental Resource Permit No. IND-083-130588-4 should be issued as proposed in the respective proposed agency actions issued by the St. Johns River Water Management District.
Findings Of Fact The Parties Sierra Club, Inc., is a national organization, the mission of which is to explore, enjoy, and advocate for the environment. A substantial number of Sierra Club’s 28,000 Florida members utilize the Silver River, Silver Springs, the Ocklawaha River, and the St. Johns River for water-based recreational activities, which uses include kayaking, swimming, fishing, boating, canoeing, nature photography, and bird watching. St. Johns Riverkeeper, Inc., is one of 280 members of the worldwide Waterkeepers Alliance. Its mission is to protect, restore, and promote healthy waters of the St. Johns River, its tributaries, springs, and wetlands -- including Silver Springs, the Silver River, and the Ocklawaha River -- through citizen- based advocacy. A substantial number of St. Johns Riverkeeper’s more than 1,000 members use and enjoy the St. Johns River, the Silver River, Silver Springs, and the Ocklawaha River for boating, fishing, wildlife observation, and other water-based recreational activities. Karen Ahlers is a native of Putnam County, Florida, and lives approximately 15 miles from the Applicant’s property on which the permitted uses will be conducted. Ms. Ahlers currently uses the Ocklawaha River for canoeing, kayaking, and swimming, and enjoys birding and nature photography on and around the Silver River. Over the years, Ms. Ahlers has advocated for the restoration and protection of the Ocklawaha River, as an individual and as a past-president of the Putnam County Environmental Council. Jeri Baldwin lives on a parcel of property in the northeast corner of Marion County, approximately one mile from the Applicant’s property on which the permitted uses will be conducted. Ms. Baldwin, who was raised in the area, and whose family and she used the resources extensively in earlier years, currently uses the Ocklawaha River for boating. Florida Defenders of the Environment (FDE) is a Florida corporation, the mission of which is to conserve and protect and restore Florida's natural resources and to conduct environmental education projects. A substantial number of FDE’s 186 members, of which 29 reside in Marion County, Florida, use and enjoy Silver Springs, the Silver River, and the Ocklawaha Aquatic Preserve, and their associated watersheds in their educational and outreach activities, as well as for various recreational activities including boating, fishing, wildlife observation, and other water-based recreational activities. Sleepy Creek Lands, LLC (Sleepy Creek or Applicant), is an entity registered with the Florida Department of State to do business in the state of Florida. Sleepy Creek owns approximately 21,000 acres of land in Marion County, Florida, which includes the East Tract and the North Tract on which the activities authorized by the permits are proposed. St. Johns River Water Management District (SJRWMD or District) is a water-management district created by section 373.069(1). It has the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. The Consumptive Use Permit The CUP is a modification and consolidation of two existing CUP permits, CUP No. 2-083-3011-7 and CUP No. 2-083- 91926-2, which authorize the withdrawal of 1.46 mgd from wells located on the East Tract. Although the existing CUP permits authorize an allocation of 1.46 mgd, actual use has historically been far less, and rarely exceeded 0.3 mgd. The proposed CUP modification will convert the authorized use of water from irrigation of 1,010 acres of sod grass on the East Tract, to supplemental irrigation of improved pasture for grass and other forage crops (approximately 97 percent of the proposed withdrawals) and cattle watering (approximately three percent of the proposed withdrawals) on the North Tract and the East Tract. An additional very small amount will be used in conjunction with the application of agricultural chemicals. CUP No. 2-083-3011-7 is due to expire in 2021. CUP No. 2-083-91926-2 is due to expire in 2024. In addition to the consolidation of the withdrawals into a single permit, the proposed agency action would extend the term of the consolidated permit to 20 years from issuance, with the submission of a compliance report due 10 years from issuance. Sleepy Creek calculated a water demand of 2.569 mgd for the production of grasses and forage crops necessary to meet the needs for grass-fed beef production, based on the expected demand in a 2-in-10 drought year. That calculation is consistent with that established in CUP Applicant’s Handbook (CUP A.H.) section 12.5.1. The calculated amount exceeds the authorized average allocation of 1.46 mgd. Mr. Jenkins testified as to the District’s understanding that the requested amount would be sufficient, since the proposed use was a “scaleable-type project,” with adjustments to cattle numbers made as necessary to meet the availability of feed. Regardless of demand, the proposed permit establishes the enforceable withdrawal limits applicable to the property. With regard to the East Tract, the proposed agency action reduces the existing 1.46 mgd allocation for that tract to a maximum allocation of 0.464 mgd, and authorizes the irrigation of 611 acres of pasture grass using existing extraction wells and six existing pivots. With regard to the North Tract, the proposed agency action authorizes the irrigation of 1,620 acres of pasture and forage grain crops using 15 center pivot systems. Extraction wells to serve the North Tract pivots will be constructed on the North Tract. The proposed North Tract withdrawal wells are further from Silver Springs than the current withdrawal locations. The proposed CUP allows Sleepy Creek to apply the allocated water as it believes to be appropriate to the management of the cattle operation. Although the East Tract is limited to a maximum of 0.464 mgd, there is no limitation on the North Tract. Thus, Sleepy Creek could choose to apply all of the 1.46 mgd on the North Tract. For that reason, the analysis of impacts from the irrigation of the North Tract has generally been based on the full 1.46 mgd allocation being drawn from and applied to the North Tract. The Environmental Resource Permit As initially proposed, the CUP had no elements that would require issuance of an ERP. However, in order to control the potential for increased runoff and nutrient loading resulting from the irrigation of the pastures, Sleepy Creek proposes to construct a stormwater management system to capture runoff from the irrigated pastures, consisting of a series of vegetated upland buffers, retention berms and redistribution swales between the pastures and downgradient wetland features. Because the retention berm and swale system triggered the permitting thresholds in rule 62-330.020(2)(d) (“a total project area of more than one acre”) and rule 62-330.020(2)(e) (“a capability of impounding more than 40 acre-feet of water”), Sleepy Creek was required to obtain an Environmental Resource Permit for its construction. Regional Geologic Features To the west of the North Tract is a geologic feature known as the Ocala Uplift or Ocala Platform, in which the limestone that comprises the Floridan aquifer system exists at or very near the land surface. Karst features, including subterranean conduits and voids that can manifest at the land surface as sinkholes, are common in the Ocala Uplift due in large part to the lack of consolidated or confining material overlaying the limestone. Water falling on the surface of such areas tends to infiltrate rapidly through the soil into the Floridan aquifer, occasionally through direct connections such as sinkholes. The lack of confinement in the Ocala Uplift results in few if any surface-water features such as wetlands, creeks, and streams. As one moves east from the Ocala Uplift, a geologic feature known as the Cody Escarpment becomes more prominent. In the Cody Escarpment, the limestone becomes increasingly overlain by sands, shell, silt, clays, and other less permeable sediments of the Hawthorn Group. The North Tract and the East Tract lie to the east of the point at which the Cody Escarpment becomes apparent. As a result, water tends to flow overland to wetlands and other surface water features. The Property The North and East Tracts are located in northern Marion County near the community of Fort McCoy. East Tract Topography and Historic Use The East Tract is located in the Daisy Creek Basin, and includes the headwaters of a small creek that drains directly to the Ocklawaha River. The historic use of the East Tract has been as a cleared 1,010-acre sod farm. The production of sod included irrigation, fertilization, and pest control. Little change in the topography, use, and appearance of the property will be apparent as a result of the permits at issue, but for the addition of grazing cattle. The current CUPs that are subject to modification in this proceeding authorize groundwater withdrawals for irrigation of the East Tract at the rate of 1.46 mgd. Since the proposed agency action has the result of reducing the maximum withdrawal from wells on the East Tract to 0.464 mgd, thus proportionately reducing the proposed impacts, there was little evidence offered to counter Sleepy Creek’s prima facie case that reasonable assurance was provided that the proposed East Tract groundwater withdrawal allocation will meet applicable CUP standards. There are no stormwater management structures to be constructed on the East Tract. Therefore, the ERP permit discussed herein is not applicable to the East Tract. North Tract Topography and Historic Use The North Tract has a generally flat topography, with elevations ranging from 45 feet to 75 feet above sea level. The land elevation is highest at the center of the North Tract, with the land sloping towards the Ocklawaha River to the east, and to several large wet prairie systems to the west. Surface water features on the North Tract include isolated, prairie, and slough-type wetlands on approximately 28 percent of the North Tract, and a network of creeks, streams, and ditches, including the headwaters of Mill Creek, a contributing tributary of the Ocklawaha River. A seasonal high groundwater elevation on the North Tract is estimated at 6 to 14 inches below ground surface. The existence of defined creeks and surface water features supports a finding that the North Tract is underlain by a relatively impermeable confining layer that impedes the flow of water from the surface and the shallow surficial aquifer to the upper Floridan and lower Floridan aquifers. If there was no confining unit, water going onto the surface of the property, either in the form of rain or irrigation water, would percolate unimpeded to the lower aquifers. Areas in the Ocala Uplift to the west of the North Tract, where the confining layer is thinner and discontiguous, contain few streams or runoff features. Historically, the North Tract was used for timber production, with limited pasture and crop lands. At the time the 7,207-acre North Tract was purchased by Sleepy Creek, land use consisted of 4,061 acres of planted pine, 1,998 acres of wetlands, 750 acres of improved pasture, 286 acres of crops, 78 acres of non-forested uplands, 20 acres of native forest, 10 acres of open water, and 4 acres of roads and facilities. Prior to the submission of the CUP and ERP applications, much of the planted pine was harvested, and the land converted to improved pasture. Areas converted to improved pasture include those proposed for irrigation, which have been developed in the circular configuration necessary for future use with center irrigation pivots. As a result of the harvesting of planted pine, and the conversion of about 345 acres of cropland and non-forested uplands to pasture and incidental uses, total acreage in pasture on the North Tract increased from 750 acres to 3,938 acres. Other improvements were constructed on the North Tract, including the cattle processing facility. Aerial photographs suggest that the conversion of the North Tract to improved pasture and infrastructure to support a cattle ranch is substantially complete. The act of converting the North Tract from a property dominated by planted pine to one dominated by improved pasture, and the change in use of the East Tract from sod farm to pasture, were agricultural activities that did not require a permit from the District. As such, there is no impropriety in considering the actual, legal use of the property in its current configuration as the existing use for which baseline conditions are to be measured. Petitioners argue that the baseline conditions should be measured against the use of the property as planted pine plantation, and that Sleepy Creek should not be allowed to “cattle-up” before submitting its permit applications, thereby allowing the baseline to be established as a higher impact use. However, the applicable rules and statutes provide no retrospective time-period for establishing the nature of a parcel of property other than that lawfully existing when the application is made. See West Coast Reg’l Water Supply Auth. v. SW Fla. Water Mgmt. Dist., Case No. 95-1520 et seq., ¶ 301 (Fla. DOAH May 29, 1997; SFWMD ) (“The baseline against which projected impacts conditions [sic] are those conditions, including previously permitted adverse impacts, which existed at the time of the filing of the renewal applications.”). The evidence and testimony in this case focused on the effects of the water allocation on the Floridan aquifer, Silver Springs, and the Silver River, and on the effects of the irrigation on water and nutrient transport from the properties. It was not directed at establishing a violation of chapter 373, the rules of the SJRWMD, or the CUP Applicant’s Handbook with regard to the use and management of the agriculturally-exempt unirrigated pastures, nor did it do so. Soil Types Soils are subject to classifications developed by the Soil Conservation Service based on their hydrologic characteristics, and are grouped into Group A, Group B, Group C, or Group D. Factors applied to determine the appropriate hydrologic soil group on a site-specific basis include depth to seasonal high saturation, the permeability rate of the most restrictive layer within a certain depth, and the depth to any impermeable layers. Group A includes the most well-drained soils, and Group D includes the most poorly-drained soils. Group D soils are those with seasonal high saturation within 24 inches of the soil surface and a higher runoff potential. The primary information used to determine the hydrologic soil groups on the North Tract was the depth to seasonal-high saturation, defined as the highest expected annual elevation of saturation in the soil. Depth to seasonal-high saturation was measured through a series of seven hand-dug and augered soil borings completed at various locations proposed for irrigation across the North Tract. In determining depth to seasonal-high saturation, the extracted soils were examined based on depth, color, texture, and other relevant characteristics. In six of the seven locations at which soil borings were conducted, a restrictive layer was identified within 36 inches of the soil surface. At one location at the northeastern corner of the North Tract, the auger hole ended at a depth of 48 inches -- the length of the auger -- at which depth there was an observable increase in clay content but not a full restrictive layer. However, while the soil assessment was ongoing, a back-hoe was in operation approximately one hundred yards north of the boring location. Observations of that excavation revealed a heavy clay layer at a depth of approximately 5 feet. In each of the locations, the depth to seasonal-high saturation was within 14 inches of the soil surface. Based on the consistent observation of seasonal-high saturation at each of the sampled locations, as well as the flat topography of the property with surface water features, the soils throughout the property, with the exception of a small area in the vicinity of Pivot 6, were determined to be in hydrologic soil Group D. Hydrogeologic Features There are generally five hydrogeologic units underlying the North Tract, those units being the surficial aquifer system, the intermediate confining unit, the upper Floridan aquifer, the middle confining unit, and the lower Floridan aquifer. In areas in which a confining layer is present, water falling on the surface of the land flows over the surface of the land or across the top of the confining layer. A surficial aquifer, with a relatively high perched water table, is created by the confinement and separation of surface waters from the upper strata of the Floridan aquifer. Surface waters are also collected in or conveyed by various surface water features, including perched wetlands, creeks, and streams. The preponderance of the evidence adduced at the final hearing demonstrates that the surficial aquifer exists on the property to a depth of up to 20 feet below the land surface (bls). Beneath the surficial aquifer is an intermediate confining unit of dense clay interspersed with beds of sand and calcareous clays that exists to a depth of up to 100 feet bls. The clay material observed on the North Tract is known as massive or structureless. Such clays are restrictive with very low levels of hydraulic conductivity, and are not conducive to development of preferential flow paths to the surficial or lower aquifers. The intermediate confining unit beneath the North Tract restricts the exchange of groundwater from the surficial aquifer to the upper Floridan aquifer. The upper Floridan aquifer begins at a depth of approximately 100 feet bls, and extends to a depth of approximately 340 feet bls. At about 340 feet bls, the upper Floridan aquifer transitions to the middle confining unit, which consists of finely grained, denser material that separates the interchange of water between the upper Floridan aquifer and the lower Floridan aquifer. Karst Features Karst features form as a result of water moving through rock that comprises the aquifer, primarily limestone, dissolving and forming conduits in the rock. Karst areas present a challenging environment to simulate through modeling. Models assume the subsurface to be a relatively uniform “sand box” through which it is easier to simulate groundwater flow. However, if the subsurface contains conduits, it becomes more difficult to simulate the preferential flows and their effect on groundwater flow paths and travel times. The District has designated parts of western Alachua County and western Marion County as a Sensitive Karst Area Basin. A Sensitive Karst Area is a location in which the porous limestone of the Floridan aquifer occurs within 20 feet of the land surface, and in which there is 10 to 20 inches of annual recharge to the Floridan aquifer. The designation of an area as being within the Sensitive Karst Area Basin does not demonstrate that it does, or does not, have subsurface features that are karstic in nature, or that would provide a connection between the surficial aquifer and the Floridan aquifer. The western portion of the North Tract is within the Sensitive Karst Area Basin. The two intensive-use areas on the North Tract that have associated stormwater facilities -- the cattle unloading area and the processing facility -- are outside of the Sensitive Karst Area Basin. The evidence was persuasive that karst features are more prominent to the west of the North Tract. In order to evaluate the presence of karst features on the North Tract, Mr. Andreyev performed a “desktop-type evaluation,” with a minimal field survey. The desktop review included a review of aerial photographs and an investigation of available data, including the Florida Geological Survey database of sinkhole occurrence in the area. The aerial photographs showed circular depressions suggestive of karst activity west and southwest of the North Tract, but no such depressions on the North Tract. Soil borings taken on the North Tract indicated the presence of layers of clayey sand, clays, and silts at a depth of 70 to 80 feet. Well-drilling logs taken during the development of the wells used for an aquifer performance test on the North Tract showed the limestone of the Floridan aquifer starting at a depth below ground surface of 70 to 80 feet. Other boring data generated on the North Tract suggests that there is greater than 100 feet of clay and sandy clay overburden above the Floridan aquifer on and in the vicinity of the North Tract. Regardless of site-specific differences, the observed confining layer separating the surficial aquifer from the Floridan aquifer is substantial, and not indicative of a karst environment. Aquifer performance tests performed on the North Tract were consistent in showing that drawdown in the surficial aquifer from the tests was minimal to non-detectable, which is strong evidence of an intact and low-permeability confining layer. The presence of well-developed drainage features on the North Tract is further evidence of a unit of confinement that is restricting water from going deeper into the subsurface, and forcing it to runoff to low-lying surface water features. Petitioners’ witnesses did not perform any site- specific analysis of karst features on or around the Sleepy Creek property. Their understanding of the nature of the karst systems in the region was described as “hypothetical or [] conceptual.” Dr. Kincaid admitted that he knew of no conduits on or adjacent to the North Tract. As a result of the data collected from the North Tract, Mr. Hearn opined that the potential for karst features on the property that provide an opening to the upper Floridan aquifer “is extremely remote.” Mr. Hearn’s opinion is consistent with the preponderance of the evidence in this case, and is accepted. In the event a surface karst feature were to manifest itself, Sleepy Creek has proposed that the surface feature be filled and plugged to reestablish the integrity of the confining layer. More to the point, the development of a surficial karst feature in an area influenced by irrigation would be sufficient grounds for the SJRWMD to reevaluate and modify the CUP to account for any changed conditions affecting the assumptions and bases for issuance of the CUP. Silver Springs, the Silver River, and the Ocklawaha River The primary, almost exclusive concern of Petitioners was the effect of the modified CUP and the nutrients from the proposed cattle ranch on Silver Springs, the Silver River, and the Ocklawaha River. Silver Springs Silver Springs has long been a well-known attraction in Florida. It is located just to the east of Ocala, Florida. Many of the speakers at the public comment period of this proceeding spoke fondly of having frequented Silver Springs over the years, enjoying its crystal clear waters through famous glass-bottomed boats. For most of its recorded history, Silver Springs was the largest spring by volume in Florida. Beginning in the 1970s, it began to lose its advantage, and by the year 2000, Rainbow Springs, located in southwestern Marion County, surpassed Silver Springs as the state’s largest spring. Silver Springs exists at the top of the potentiometric surface of the Floridan aquifer. Being at the “top of the mountain,” when water levels in the Floridan aquifer decline, groundwater flow favors the lower elevation springs. Thus, surrounding springshed boundaries expand to take more water to maintain their baseflows, at the expense of the Silver Springs springshed, which contracts. Rainbow Springs shares an overlapping springshed with Silver Springs. The analogy used by Dr. Knight was of the aquifer as a bucket with holes at different levels, and with the Silver Springs “hole” near the top of the bucket. When the water level in the bucket is high, water will flow from the top hole. As the water level drops below that hole, it will preferentially flow from the lower holes. Rainbow Springs has a vent or outlet from the aquifer, that is 10 feet lower in elevation than that of Silver Springs. Coastal springs are lower still. Thus, as groundwater levels decline, the lower springs “pirate flow” from the upper springs. Since the first major studies of Silver Springs were conducted in the 1950s, the ecosystem of Silver Springs has undergone changes. The water clarity, though still high as compared to other springs, has been reduced by 10 to 15 percent. Since the 1950s, macrophytic plants, i.e., rooted plants with seeds and flowers, have declined in population, while epiphytic and benthic algae have increased. Those plants are sensitive to increases in nitrogen in the water. Thus, Dr. Knight’s opinion that increases in nitrogen emerging from Silver Springs, calculated to have risen from just over 0.4 mg/l in the 1950s, to 1.1 mg/l in 2004, and to up to 1.5 mg/l at present,1/ have caused the observed vegetative changes is accepted. Silver River Silver Springs forms the headwaters for the Silver River, a spring run 5 1/2 miles in length, at which point it becomes a primary input to the Ocklawaha River. Issues of water clarity and alteration of the vegetative regime that exist at Silver Springs are also evident in the Silver River. In addition, the reduction in flow allows for more tannic water to enter the river, further reducing clarity. Dr. Dunn recognized the vegetative changes in the river, and opined that the “hydraulic roughness” caused by the increase in vegetation is likely creating a spring pool backwater at Silver Springs, thereby suppressing some of the flow from the spring. The Silver River has been designated as an Outstanding Florida Water. There are currently no Minimum Flows and Levels established by the District for the Silver River. Ocklawaha River The Ocklawaha River originates near Leesburg, Florida, at the Harris Chain of Lakes, and runs northward past Silver Springs. The Silver River is a major contributor to the flow of the Ocklawaha River. Due to the contribution of the Silver River and other spring-fed tributaries, the Ocklawaha River can take on the appearance of a spring run during periods of low rainfall. Historically, the Ocklawaha River flowed unimpeded to its confluence with the St. Johns River in the vicinity of Palatka, Florida. In the 1960s, as part of the Cross-Florida Barge Canal project, the Rodman Dam was constructed across the Ocklawaha River north of the Sleepy Creek property, creating a large reservoir known as the Rodman Pool. Dr. Knight testified convincingly that the Rodman Dam and Pool have altered the Ocklawaha River ecosystem, precipitating a decline in migratory fish populations and an increase in filamentous algae. At the point at which the Ocklawaha River flows past the Sleepy Creek property, it retains its free-flowing characteristics. Mill Creek, which has its headwaters on the North Tract, is a tributary of the Ocklawaha River. The Ocklawaha River, from the Eureka Dam south, has been designated as an Outstanding Florida Water. However, the Ocklawaha River at the point at which Mill Creek or other potential surface water discharges from the Sleepy Creek property might enter the river are not included in the Outstanding Florida Water designation. There are currently no Minimum Flows and Levels established by the District for the Ocklawaha River. The Silver Springs Springshed A springshed is that area from which a spring draws water. Unlike a surface watershed boundary, which is fixed based on land features, contours, and elevations, a springshed boundary is flexible, and changes depending on a number of factors, including rainfall. As to Silver Springs, its springshed is largest during periods of more abundant rainfall when the aquifer is replenished, and smaller during drier periods when groundwater levels are down, and water moves preferentially to springs and discharge points that are lower in elevation. The evidence in this case was conflicting as to whether the North Tract is in or out of the Silver Springs springshed boundary. Dr. Kincaid indicated that under some of the springshed delineations, part of the North Tract was out of the springshed, but over the total period of record, it is within the springshed. Thus, it was Dr. Kincaid’s opinion that withdrawals anywhere within the region will preferentially impact Silver Springs, though he admitted that he did not have the ability to quantify his opinion. Dr. Knight testified that the North Tract is within the Silver Springs “maximum extent” springshed at least part of the time, if not all the time. He did not opine as to the period of time in which the Silver Springs springshed was at its maximum extent. Dr. Bottcher testified that the North Tract is not within the Silver Springs springshed because there is a piezometric rise between North Tract and Silver Springs. Thus, in his opinion, withdrawals at the North Tract would not be withdrawing water going to Silver Springs. Dr. Dunn agreed that the North Tract is on the groundwater divide for Silver Springs. In his view, the North Tract is sometimes in, and sometimes out of the springshed depending on the potentiometric surface. In his opinion, the greater probability is that the North Tract is more often outside of the Silver Springs springshed, with seasonal and year—to—year variation. Dr. Dunn’s opinion provides the most credible explanation of the extent to which the North Tract sits atop that portion of the lower Floridan aquifer that feeds to Silver Springs. Thus, it is found that the groundwater divide exists to the south of the North Tract for a majority of the time, and water entering the Floridan aquifer from the North Tract will, more often than not, flow away from Silver Springs. Silver Springs Flow Volume The Silver Springs daily water discharge has been monitored and recorded since 1932. Over the longest part of the period of record, up to the 1960s, flows at Silver Springs averaged about 800 cubic feet per second (cfs). Through 1989, there was a reasonable regression between rainfall and springflow, based on average rainfalls. The long-term average rainfall in Ocala was around 50 inches per year, and long-term springflow was about 800 cfs, with deviations from average generally consistent with one another. Between 1990 and 1999, the relationship between rainfall and springflow declined by about 80 cubic feet per second. Thus, with average rainfall of 50 inches per year, the average springflow was reduced to about 720 cfs. From 2000 to 2009, there was an additional decline, such that the total cumulative decline for the 20-year period through 2009 was 250 cfs. Dr. Dunn agreed with Dr. Knight that after 2000, there was an abrupt and persistent reduction in flow of about 165 cfs. However, Dr. Dunn did not believe the post-2000 flow reduction could be explained by rainfall directly, although average rainfall was less than normal. Likewise, groundwater withdrawals did not offer an adequate explanation. Dr. Dunn described a natural 30-year cycle of wetter and drier periods known as the Atlantic Multidecadal Oscillation (AMO) that has manifested itself over the area for the period of record. From the 1940s up through 1970, the area experienced an AMO wet cycle with generally higher than normal rainfall at the Ocala rain station. For the next 30-year period, from 1970 up to 2000, the Ocala area ranged from a little bit drier to some years in which it was very, very dry. Dr. Dunn attributed the 80 cfs decline in Silver Springs flow recorded in the 1990s to that lower rainfall cycle. After 2000, when the next AMO cycle would be expected to build up, as it did post—1940, it did not happen. Rather, there was a particularly dry period around 2000 that Dr. Dunn believes to have had a dramatic effect on the lack of recovery in the post-2000 flows in the Silver River. According to Mr. Jenkins, that period of deficient rainfall extended through 2010. Around the year 2001, the relationship between rainfall and flow changed such that for a given amount of rainfall, there was less flow in the Silver River, with flow dropping to as low as 535 cfs after 2001. It is that reduction in flow that Dr. Knight has attributed to groundwater withdrawals. It should be noted that the observed flow of Silver Springs that formed the 1995 baseline conditions for the North Central Florida groundwater model that will be discussed herein was approximately 706 cfs. At the time of the final hearing in August 2014, flow at Silver Springs was 675 cfs. The reason offered for the apparent partial recovery was higher levels of rainfall, though the issue was not explored in depth. For the ten-year period centered on the year 2000, local water use within Marion and Alachua County, closer to Silver Springs, changed little -- around one percent per year. From a regional perspective, groundwater use declined at about one percent per year for the period from 1990 to 2010. The figures prepared by Dr. Knight demonstrate that the Sleepy Creek project area is in an area that has a very low density of consumptive use permits as compared to areas adjacent to Silver Springs and more clearly in the Silver Springs springshed. In Dr. Dunn’s opinion, there were no significant changes in groundwater use either locally or regionally that would account for the flow reduction in Silver Springs from 1990 to 2010. In that regard, the environmental report prepared by Dr. Dunn and submitted with the CUP modification application estimated that groundwater withdrawals accounted for a reduction in flow at Silver Springs of approximately 20 cfs as measured against the period of record up to the year 2000, with most of that reduction attributable to population growth in Marion County. In the March 2014, environmental impacts report, Dr. Dunn described reductions in the stream flow of not only the Silver River, but of other tributaries of the lower Ocklawaha River, including the upper Ocklawaha River at Moss Bluff and Orange Creek. However, an evaluation of the Ocklawaha River water balance revealed there to be additional flow of approximately 50 cfs coming into the Ocklawaha River at other stations. Dr. Dunn suggested that changes to the vent characteristics of Silver Springs, and the backwater effects of increased vegetation in the Silver River, have resulted in a redistribution of pressure to other smaller springs that discharge to the Ocklawaha River, accounting for a portion of the diminished flow at Silver Springs. The Proposed Cattle Operation Virtually all beef cattle raised in Florida, upon reaching a weight of approximately 875 pounds, are shipped to Texas or Kansas to be fattened on grain to the final body weight of approximately 1,150 pounds, whereupon they are slaughtered and processed. The United States Department of Agriculture has a certification for grass—fed beef which requires that, after an animal is weaned, it can only be fed on green forage crops, including grasses, and on corn and grains that are cut green and before they set seed. The forage crops may be grazed or put into hay or silage and fed when grass and forage is dormant. The benefit of grass feeding is that a higher quality meat is produced, with a corresponding higher market value. Sleepy Creek plans to develop the property as a grass- fed beef production ranch, with pastures and related loading/unloading and slaughter/processing facilities where calves can be fattened on grass and green grain crops to a standard slaughter weight, and then slaughtered and processed locally. By so doing, Sleepy Creek expects to save the transportation and energy costs of shipping calves to the Midwest, and to generate jobs and revenues by employing local people to manage, finish, and process the cattle. As they currently exist, pastures proposed for irrigation have been cleared and seeded, and have “fairly good grass production.” The purpose of the irrigation is to enhance the production and quality of the grass in order to maintain the quality and reliability of feed necessary for the production of grass-fed beef. East Tract Cattle Operation The East Tract is 1,242 acres in size, substantially all of which was previously cleared, irrigated, and used for sod production. The proposed CUP permit authorizes the irrigation of 611 acres of pasture under six existing center pivots. The remaining 631 acres will be used as improved, but unirrigated, pasture. Under the proposed permit, a maximum of 1,207 cattle would be managed on the East Tract. Of that number, 707 cattle would be grazed on the irrigated paddocks, and 500 cattle would be grazed on the unirrigated improved pastures. If the decision is made to forego irrigation on the East Tract, with the water allocation being used on the North Tract or not at all, the number of cattle grazed on the six center pivot pastures would be decreased from 707 cattle to 484 cattle. The historic use of the East Tract as a sod farm resulted in high phosphorus levels in the soil from fertilization, which has made its way to Daisy Creek. Sleepy Creek has proposed a cattle density substantially below that allowed by application of the formulae in the Nutrient Management Plan in order to “mine” the phosphorus levels in the soil over time. North Tract Cattle Operation The larger North Tract includes most of the “new” ranch activities, having no previous irrigation, and having been put to primarily silvicultural use with limited pasture prior to its acquisition by Sleepy Creek. The ranch’s more intensive uses, i.e., the unloading corrals and the slaughter house, are located on the North Tract. The North Tract is 7,207 acres in size. Of that, 1,656 acres are proposed for irrigation by means of 15 center- pivot irrigation systems. In addition to the proposed irrigated pastures, the North Tract includes 2,382 acres of unirrigated improved pasture, of which approximately 10 percent is wooded. Under the proposed permit, a maximum of 6,371 cattle would be managed on the North Tract. Of that number, 3,497 cattle would be grazed on the irrigated paddocks (roughly 2.2 head of cattle per acre), and 2,374 cattle would graze on the improved pastures (up to 1.1 head of cattle per acre). The higher cattle density in the irrigated pastures can be maintained due to the higher quality grass produced as a result of irrigation. The remaining 500 cattle would be held temporarily in high-concentration corrals, either after offloading or while awaiting slaughter. On average, there will be fewer than 250 head of cattle staged in those high-concentration corrals at any one time. In the absence of irrigation, the improved pasture on the North Tract could sustain about 4,585 cattle. Nutrient Management Plan, Water Conservation Plan, and BMPs The CUP and ERP applications find much of their support in the implementation of the Nutrient Management Plan (NMP), the Water Conservation Plan, and Best Management Practices (BMPs). The NMP sets forth information designed to govern the day to day operations of the ranch. Those elements of the NMP that were the subject of substantive testimony and evidence at the hearing are discussed herein. Those elements not discussed herein are found to have been supported by Sleepy Creek’s prima facie case, without a preponderance of competent and substantial evidence to the contrary. The NMP includes a herd management plan, which describes rotational grazing and the movement of cattle from paddock to paddock, and establishes animal densities designed to maintain a balance of nutrients on the paddocks, and to prevent overgrazing. The NMP establishes fertilization practices, with the application of fertilizer based on crop tissue analysis to determine need and amount. Thus, the application of nitrogen- based fertilizer is restricted to that capable of ready uptake by the grasses and forage crops, limiting the amount of excess nitrogen that might run off of the pastures or infiltrate past the root zone. The NMP establishes operation and maintenance plans that incorporate maintenance and calibration of equipment, and management of high-use areas. The NMP requires that records be kept of, among other things, soil testing, nutrient application, herd rotation, application of irrigation water, and laboratory testing. The irrigation plan describes the manner and schedule for the application of water during each irrigation cycle. Irrigation schedules for grazed and cropped scenarios vary from pivot to pivot based primarily on soil type. The center pivots proposed for use employ high-efficiency drop irrigation heads, resulting in an 85 percent system efficiency factor, meaning that there is an expected evaporative loss of 15 percent of the water before it becomes available as water in the soil. That level of efficiency is greater than the system efficiency factor of 80 percent established in CUP A.H. section 12.5.2. Other features of the irrigation plan include the employment of an irrigation manager, installation of an on-site weather station, and cumulative tracking of rain and evapotranspiration with periodic verification of soil moisture conditions. The purpose of the water conservation practices is to avoid over application of water, limiting over-saturation and runoff from the irrigated pastures. Sleepy Creek has entered into a Notice of Intent to Implement Water Quality BMPs with the Florida Department of Agriculture and Consumer Services which is incorporated in the NMP and which requires the implementation of Best Management Practices.2/ Dr. Bottcher testified that implementation and compliance with the Water Quality Best Management Practices manual creates a presumption of compliance with water quality standards. His testimony in that regard is consistent with Department of Agriculture and Consumer Services rule 5M-11.003 (“implementation, in accordance with adopted rules, of BMPs that have been verified by the Florida Department of Environmental Protection as effective in reducing target pollutants provides a presumption of compliance with state water quality standards.”). Rotational Grazing Rotational grazing is a practice by which cattle are allowed to graze a pasture for a limited period of time, after which they are “rotated” to a different pasture. The 1,656 acres proposed for irrigation on the North Tract are to be divided into 15 center-pivot pastures. Each individual pasture will have 10 fenced paddocks. The 611 acres of irrigated pasture on the East Tract are divided into 6 center-pivot pastures. The outer fence for each irrigated pasture is to be a permanent “hard” fence. Separating the internal paddocks will be electric fences that can be lowered to allow cattle to move from paddock to paddock, and then raised after they have moved to the new paddock. The NMP for the North Tract provides that cattle are to be brought into individual irrigated pastures as a single herd of approximately 190 cattle and placed into one of the ten paddocks. They will be moved every one to three days to a new paddock, based upon growing conditions and the reduction in grass height resulting from grazing. In this way, the cattle are rotated within the irrigated pasture, with each paddock being used for one to three days, and then rested until each of the other paddocks have been used, whereupon it will again be used in the rotation. The East Tract NMP generally provides for rotation based on the height of the pasture grasses, but is designed to provide a uniform average of cattle per acre per year. Due to the desire to “mine” phosphorus deposited during the years of operation of the East Tract as a sod farm, the density of cattle on the irrigated East Tract pastures is about 30 percent less than that proposed for the North Tract. The East Tract NMP calls for a routine pasture rest period of 15 to 30 days. Unlike dairy farm pastures, where dairy cows traverse a fixed path to the milking barn several times a day, there will be minimal “travel lanes” within the pastures or between paddocks. There will be no travel lanes through wetlands. If nitrogen-based fertilizer is needed, based upon tissue analysis of the grass, fertilizer is proposed for application immediately after a paddock is vacated by the herd. By so doing, the grass within each paddock will have a sufficient period to grow and “flush up” without grazing or traffic, which results in a high—quality grass when the cattle come back around to feed. Sleepy Creek proposes that rotational grazing is to be practiced on improved pastures and irrigated pastures alike. The rotational practices on the improved East Tract and North Tract pastures are generally similar to those practiced on the irrigated pastures. The paddocks will have permanent watering troughs, with one trough serving two adjacent paddocks. The troughs will be raised to prevent “boggy areas” from forming around the trough. Since the area around the troughs will be of a higher use, Sleepy Creek proposes to periodically remove accumulated manure, and re-grade if necessary. Other cattle support items, including feed bunkers and shade structures are portable and can be moved as conditions demand. Forage Crop Production The primary forage crop on the irrigated pastures is to be Bermuda grass. Bermuda grass or other grass types tolerant of drier conditions will be used in unirrigated pastures. During the winter, when Bermuda grass stops growing, Sleepy Creek will overseed the North Tract pastures with ryegrass or other winter crops. Due to the limitation on irrigation water, the East Tract NMP calls for no over-seeding for production of winter crops. Crops do not grow uniformly during the course of a year. Rather, there are periods during which there are excess crops, and periods during which the crops are not growing enough to keep up with the needs of the cattle. During periods of excess, Sleepy Creek will cut those crops and store them as haylage to be fed to the cattle during lower growth periods. The North Tract management plan allows Sleepy Creek to dedicate one or more irrigated pastures for the exclusive production of haylage. If that option is used, cattle numbers will be reduced in proportion to the number of pastures dedicated to haylage production. As a result of the limit on irrigation, the East Tract NMP does not recommend growing supplemental feed on dedicated irrigation pivot pastures. Direct Wetland Impacts Approximately 100 acres proposed for irrigation are wetlands or wetland buffer. Those areas are predominantly isolated wetlands, though some have surface water connections to Mill Creek, a water of the state. Trees will be cut in the wetlands to allow the pivot to pass overhead. Tree cutting is an exempt agricultural activity that does not require a permit. There was no persuasive evidence that cutting trees will alter the fundamental benefit of the wetlands or damage water resources of the District. The wetlands and wetland buffer will be subject to the same watering and fertigation regimen as the irrigated pastures. The application of water to wetlands, done concurrently with the application of water to the pastures, will occur during periods in which the pasture soils are dry. The incidental application of water to the wetlands during dry periods will serve to maintain hydration of the wetlands, which is considered to be a benefit. Fertilizers will be applied through the irrigation arms, a process known as fertigation. Petitioners asserted that the application of fertilizer onto the wetlands beneath the pivot arms could result in some adverse effects to the wetlands. However, Petitioners did not quantify to what extent the wetlands might be affected, or otherwise describe the potential effects. Fertigation of the wetlands will promote the growth of wetland plants. Nitrogen applied through fertigation will be taken up by plants, or will be subject to denitrification -- a process discussed in greater detail herein -- in the anaerobic wetland soils. The preponderance of the evidence indicated that enhanced wetland plant growth would not rise to a level of concern. Since most of the affected wetlands are isolated wetlands, there is expected to be little or no discharge of nutrients from the wetlands. Even as to those wetlands that have a surface water connection, most, if not all of the additional nitrogen applied through fertigation will be accounted for by the combined effect of plant uptake and denitrification. Larger wetland areas within an irrigated pasture will be fenced at the buffer line to prevent cattle from entering. The NMP provided a blow-up of the proposed fencing related to a larger wetland on Pivot 8. Although other figures are not to the same scale, it appears that larger wetlands associated with Pivots 1, 2, 3, and 12 will be similarly fenced. Cattle would be allowed to go into the smaller, isolated wetlands. Cattle going into wetlands do not necessarily damage the wetlands. Any damage that may occur is a function of density, duration, and the number of cattle. The only direct evidence of potential damage to wetlands was the statement that “[i]f you have 6,371 [cattle] go into a wetland, there may be impacts.” The NMP provides that pasture use will be limited to herds of approximately 190 cattle, which will be rotated from paddock to paddock every two to three days, and which will allow for “rest” periods of approximately 20 days. There will be no travel lanes through any wetland. Thus, there is no evidence to support a finding that the cattle at the density, duration, and number proposed will cause direct adverse effects to wetlands on the property. High Concentration Areas Cattle brought to the facility are to be unloaded from trucks and temporarily corralled for inspection. For that period, the cattle will be tightly confined. Cattle that have reached their slaughter weight will be temporarily held in corrals associated with the processing plant. The stormwater retention ponds used to capture and store runoff from the offloading corral and the processing plant holding corral are part of a normal and customary agricultural activity, and are not part of the applications and approvals that are at issue in this proceeding. The retention ponds associated with the high-intensity areas do not require permits because they do not exceed one acre in size or impound more than 40 acre-feet of water. Nonetheless, issues related to the retention ponds were addressed by Petitioners and Sleepy Creek, and warrant discussion here. The retention ponds are designed to capture 100 percent of the runoff and entrained nutrients from the high concentration areas for a minimum of a 24—hour/25—year storm event. If rainfall occurs in excess of the designed storm, the design is such that upon reaching capacity, only new surface water coming to the retention pond will be discharged, and not that containing high concentrations of nutrients from the initial flush of stormwater runoff. Unlike the stormwater retention berms for the pastures, which are to be constructed from the first nine inches of permeable topsoil on the property, the corral retention ponds are to be excavated to a depth of six feet which, based on soil borings in the vicinity, will leave a minimum of two to four feet of clay beneath the retention ponds. In short, the excavation will penetrate into the clay layer underlying the pond sites, but will not penetrate through that layer. The excavated clay will be used to form the side slopes of the ponds, lining the permeable surficial layer and generally making the ponds impermeable. Organic materials entering the retention ponds will form an additional seal. An organic seal is important in areas in which retention ponds are constructed in sandy soil conditions. Organic sealing is less important in this case, where clay forms the barrier preventing nutrients from entering the surficial aquifer. Although the organic material is subject to periodic removal, the clay layer will remain to provide the impermeable barrier necessary to prevent leakage from the ponds. Dr. Bottcher testified that if, during excavation of the ponds, it was found that the remaining in-situ clay layer was too thin, Sleepy Creek would implement the standard practice of bringing additional clay to the site to ensure adequate thickness of the liner. Nutrient Balance The goal of the NMP is to create a balance of nutrients being applied to and taken up from the property. Nitrogen and phosphorus are the nutrients of primary concern, and are those for which specific management standards are proposed. Nutrient inputs to the NMP consist generally of deposition of cattle manure (which includes solid manure and urine), recycling of plant material and roots from the previous growing season, and application of supplemental fertilizer. Nutrient outputs to the NMP consist generally of volatization of ammonia to the atmosphere, uptake and utilization of the nutrients by the grass and crops, weight gain of the cattle, and absorption and denitrification of the nutrients in the soil. The NMP, and the various models discussed herein, average the grass and forage crop uptake and the manure deposition to match that of a 1,013 pound animal. That average weight takes into account the fact that cattle on the property will range from calf weight of approximately 850 pounds, to slaughter weight of 1150 pounds. Nutrients that are not accounted for in the balance, e.g., those that become entrained in stormwater or that pass through the plant root zone without being taken up, are subject to runoff to surface waters or discharge to groundwater. Generally, phosphorus not taken up by crops remains immobile in the soil. Unless there is a potential for runoff to surface waters, the nutrient balance is limited by the amount of nitrogen that can be taken up by the crops. Due to the composition of the soils on the property, the high water table, and the relatively shallow confining layer, there is a potential for surface runoff. Thus, the NMP was developed using phosphorus as the limiting nutrient, which results in nutrient application being limited by the “P-index.” A total of 108 pounds of phosphorus per acre/per year can be taken up and used by the irrigated pasture grasses and forage crops. Therefore, the total number of cattle that can be supported on the irrigated pastures is that which, as a herd, will deposit an average of 108 pounds of phosphorus per year over the irrigated acreage. Therefore, Sleepy Creek has proposed a herd size and density based on calculations demonstrating that the total phosphorus contained in the waste excreted by the cattle equals the amount taken up by the crops. A herd producing 108 pounds per acre per year of phosphorus is calculated to produce 147 pounds of nitrogen per acre per year. The Bermuda grass and forage crops proposed for the irrigated fields require 420 pounds of nitrogen per acre per year. As a result of the nitrogen deficiency, additional nitrogen-based fertilizer to make up the shortfall is required to maintain the crops. Since phosphorus needs are accounted for by animal deposition, the fertilizer will have no phosphorus. The NMP requires routine soil and plant tissue tests to determine the amount of nitrogen fertilizer needed. By basing the application of nitrogen on measured rather than calculated needs, variations in inputs, including plant decomposition and atmospheric deposition, and outputs, including those affected by weather, can be accounted for, bringing the full nutrient balance into consideration. The numeric values for crop uptakes, manure deposition, and other estimates upon which the NMP was developed were based upon literature, values, and research performed and published by the University of Florida and the Natural Resource Conservation Service. Dr. Bottcher testified convincingly that the use of such values is a proven and reliable method of developing a balance for the operation of similar agricultural operations. A primary criticism of the NMP was its expressed intent to “reduce” or “minimize” the transport of nutrients to surface waters and groundwater, rather than to “negate” or “prevent” such transport. Petitioners argue that complete prevention of the transport of nutrients from the property is necessary to meet the standards necessary for issuance of the CUP and ERP. Mr. Drummond went into some detail regarding the total mass of nutrients expected to be deposited onto the ground from the cattle, exclusive of fertilizer application. In the course of his testimony, he suggested that the majority of the nutrients deposited on the land surface “are going to make it to the surficial aquifer and then be carried either to the Floridan or laterally with the groundwater flow.” However, Mr. Drummond performed no analysis on the fate of nitrogen through uptake by crops, volatization, or soil treatment, and did not quantify the infiltration of nitrogen to groundwater. Furthermore, he was not able to provide any quantifiable estimate on any effect of nutrients on Mill Creek, the Ocklawaha River, or Silver Springs. In light of the effectiveness of the nutrient balance and other elements of the NMP, along with the retention berm system that will be discussed herein, Mr. Drummond’s assessment of the nutrients that might be expected to impact water resources of the District is contrary to the greater weight of the evidence. Mr. Drummond’s testimony also runs counter to that of Dr. Kincaid, who performed a particle track analysis of the fate of water recharge from the North Tract. In short, Dr. Kincaid calculated that of the water that makes it as recharge from the North Tract to the surficial aquifer, less than one percent is expected to make its way to the upper Floridan aquifer, with that portion originating from the vicinity of Pivot 6. Recharge from the other 14 irrigated pastures was ultimately accounted for by evapotranspiration or emerged at the surface and found its way to Mill Creek. The preponderance of the competent, substantial evidence adduced at the final hearing supports the effectiveness of the NMPs for the North Tract and East Tract at managing the application and use of nutrients on the property, and minimizing the transport of nutrients to surface water and groundwater resources of the District. North Central Florida Model All of the experts involved in this proceeding agreed that the use of groundwater models is necessary to simulate what might occur below the surface of the ground. Models represent complex systems by applying data from known conditions and impacts measured over a period of years to simulate the effects of new conditions. Models are imperfect, but are the best means of predicting the effects of stresses on complex and unseen subsurface systems. The North Central Florida (NCF) model is used to simulate impacts of water withdrawals on local and regional groundwater levels and flows. The NCF model simulates the surficial aquifer, the upper Floridan aquifer, and the lower Floridan aquifer. Those aquifers are separated from one another by relatively impervious confining units. The intermediate confining unit separates the surficial aquifer from the upper Floridan aquifer. The intermediate confining unit is not present in all locations simulated by the NCF model. However, the evidence is persuasive that the intermediate confining unit is continuous at the North Tract, and serves to effectively isolate the surficial aquifer from the upper Floridan aquifer. The NCF model is not a perfect depiction of what exists under the land surface of the North Tract or elsewhere. It was, however, acknowledged by the testifying experts in this case, despite disagreements as to the extent of error inherent in the model, to be the best available tool for calculating the effects of withdrawals of water within the boundary of the model. The NCF model was developed and calibrated over a period of years, is updated routinely as data becomes available, and has undergone peer review. Aquifer Performance Tests In order to gather site-specific data regarding the characteristics of the aquifer beneath the Sleepy Creek property, a series of three aquifer performance tests (APTs) was conducted on the North Tract. The first two tests were performed by Sleepy Creek, and the third by the District. An APT serves to induce stress on the aquifer by pumping from a well at a high rate. By observing changes in groundwater levels in observation wells, which can be at varying distances from the extraction well, one can extrapolate the nature of the subsurface. In addition, well-completion reports for the various withdrawal and observation wells provide actual data regarding the composition of subsurface soils, clays, and features of the property. The APT is particularly useful in evaluating the ability of the aquifer to produce water, and in calculating the transmissivity of the aquifer. Transmissivity is a measure of the rate at which a substance passes through a medium and, as relevant to this case, measures how groundwater flows through an aquifer. The APTs demonstrated that the Floridan aquifer is capable of producing water at the rate requested. The APT drawdown contour measured in the upper Floridan aquifer was greater than that predicted from a simple run of the NCF model, but the lateral extent of the drawdown was less than predicted. The most reasonable conclusion to be drawn from the combination of greater than expected drawdown in the upper Floridan aquifer with less than expected extent is that the transmissivity of the aquifer beneath the North Tract is lower than the NCF model assumptions. The conclusion that the transmissivity of the aquifer at the North Tract is lower than previously estimated means that impacts from groundwater extraction would tend to be more vertical than horizontal, i.e., the drawdown would be greater, but would be more localized. As such, for areas of lower than estimated transmissivity, modeling would over-estimate off-site impacts from the extraction. NCF Modeling Scenarios The initial NCF modeling runs were based on an assumed withdrawal of 2.39 mgd, an earlier -- though withdrawn - - proposal. The evidence suggests that the simulated well placement for the 2.39 mgd model run was entirely on the North Tract. Thus, the results of the model based on that withdrawal have some limited relevance, especially given that the proposed CUP allows for all of the requested 1.46 mgd of water to be withdrawn from North Tract wells at the option of Sleepy Creek, but will over-predict impacts from the permitted rate of withdrawal. A factor that was suggested as causing a further over-prediction of drawdown in the 2.39 mgd model run was the decision, made at the request of the District, to exclude the input of data of additional recharge to the surficial aquifer, wetlands and surface waters from the irrigation, and the resulting diminution in soil storage capacity. Although there is some merit to the suggestion that omitting recharge made the model results “excessively conservative,” the addition of recharge to the model would not substantially alter the predicted impacts. A model run was subsequently performed based on a presumed withdrawal of 1.54 mgd, a rate that remains slightly more than, but still representative of, the requested amount of 1.46 mgd. The 1.54 mgd model run included an input for irrigation recharge. The simulated extraction points were placed on the East Tract and North Tract in the general configuration as requested in the CUP application. The NCF is designed to model the impacts of a withdrawal based upon various scenarios, identified at the hearing as Scenarios A, B, C, and D. Scenario A is the baseline condition for the NCF model, and represents the impacts of all legal users of water at their estimated actual flow rates as they existed in 1995. Scenario B is all existing users, not including the applicant, at end-of-permit allocations. Scenario C is all existing users, including the applicant, at current end-of-permit allocations. Scenario D is all permittees at full allocation, except the applicant which is modeled at the requested (i.e., new or modified) end-of-permit allocation. To simulate the effects of the CUP modification, simulations were performed on scenarios A, C, and D. In order to measure the specific impact of the modification of the CUP, the Scenario C impacts to the surficial, upper Floridan, and lower Floridan aquifers were compared with the Scenario D impacts to those aquifers. In order to measure the cumulative impact of the CUP, the Scenario A actual-use baseline condition was compared to the Scenario D condition which predicts the impacts of all permitted users, including the applicant, pumping at full end-of-permit allocations. The results of the NCF modeling indicate the following: 2.39 mgd - Specific Impact The surficial aquifer drawdown from the simulated 2.39 mgd withdrawal was less than 0.05 feet on-site and off- site, except to the west of the North Tract, at which a drawdown of 0.07 feet was predicted. The upper Floridan aquifer drawdown from the 2.39 mgd withdrawal was predicted at between 0.30 and 0.12 feet on-site, and between 0.30 and 0.01 feet off-site. The higher off-site figures are immediately proximate to the property. The lower Floridan aquifer drawdown from the 2.39 mgd withdrawal was predicted at less than 0.05 feet at all locations, and at or less than 0.02 feet within six miles of the North Tract. 2.39 mgd - Cumulative Impact The cumulative impact to the surficial aquifer from all permitted users, including a 2.39 mgd Sleepy Creek withdrawal, was less than 0.05 feet on-site, and off-site to the north and east, except to the west of the North Tract, at which a drawdown of 0.07 feet was predicted. The cumulative impact to the upper Floridan aquifer from all permitted users, including a 2.39 mgd Sleepy Creek withdrawal, ranged from 0.4 feet to 0.8 feet over all pertinent locations. The cumulative impact to the lower Floridan aquifer from all permitted users, including a 2.39 mgd Sleepy Creek withdrawal, ranged from 1.0 to 1.9 feet over all pertinent locations. The conclusion drawn by Mr. Andreyev that the predicted impacts to the lower Floridan are almost entirely from other end-of-permit user withdrawals is supported by the evidence and accepted. 1.54 mgd - Specific Impact The NCF model runs based on the more representative 1.54 mgd withdrawal predicted a surficial aquifer drawdown of less than 0.01 feet (i.e., no drawdown contour shown) on the North Tract, and a 0.01 to 0.02 foot drawdown at the location of the East Tract. The drawdown of the upper Floridan aquifer from the CUP modification was predicted at up to 0.07 feet on the property, and generally less than 0.05 feet off-site. There were no drawdown contours at the minimum 0.01 foot level that came within 9 miles of Silver Springs. The lower Floridan aquifer drawdown from the CUP modification was predicted at less than 0.01 feet (i.e., no drawdown contour shown) at all locations. 1.54 mgd - Cumulative Impact A comparison of the cumulative drawdown contours for the 2.36 mgd model and 1.54 mgd model show there to be a significant decrease in predicted drawdowns to the surficial and upper Floridan aquifers, with the decrease in the upper Floridan aquifer drawdown being relatively substantial, i.e., from 0.5 to 0.8 feet on-site predicted for the 2.36 mgd withdrawal, to 0.4 to 0.5 feet on-site for the 1.54 mgd model. Given the small predicted individual impact of the CUP on the upper Floridan aquifer, the evidence is persuasive that the cumulative impacts are the result of other end-of-permit user withdrawals. The drawdown contour for the lower Floridan aquifer predicted by the 1.54 mgd model is almost identical to that of the 2.36 mgd model, thus supporting the conclusion that predicted impacts to the lower Floridan are almost entirely from other end-of-permit user withdrawals. Modeled Effect on Silver Springs As a result of the relocation of the extraction wells from the East Tract to the North Tract, the NCF model run at the 1.54 mgd withdrawal rate predicted springflow at Silver Springs to increase by 0.15 cfs. The net cumulative impact in spring flow as measured from 1995 conditions to the scenario in which all legal users, including Sleepy Creek, are pumping at full capacity at their end-of-permit rates for one year3/ is roughly 35.4 cfs, which is approximately 5 percent of Silver Springs’ current flow. However, as a result of the redistribution of the Sleepy Creek withdrawal, which is, in its current iteration, a legal and permitted use, the cumulative effect of the CUP modification at issue is an increase in flow of 0.l5 cfs. Dr. Kincaid agreed that there is more of an impact to Silver Springs when the pumping allowed by the CUP is located on the East Tract than there is on the North Tract, but that the degree of difference is very small. Dr. Knight testified that effect on the flow of Silver Springs from relocating the 1.46 mgd withdrawal from the East Tract to the North Tract would be “zero.” The predicted increase of 0.15 cfs is admittedly miniscule when compared to the current Silver Springs springflow of approximately 675 cfs. However, as small as the modeled increase may be -- perhaps smaller than its “level of certainty” -- it remains the best evidence that the impact of the CUP modification to the flow of Silver Springs will be insignificant at worst, and beneficial at best. Opposition to the NCF Model Petitioners submitted considerable evidence designed to call the results generated by the District’s and Sleepy Creek’s NCF modeling into question. Karst Features A primary criticism of the validity of the NCF model was its purported inability to account for the presence of karst features, including conduits, and their effect on the results. It was Dr. Kincaid’s opinion that the NCF model assigned transmissivity values that were too high, which he attributed to the presence of karst features that are collecting flow and delivering it to springs. He asserted that, instead of assuming the presence of karst features, the model was adjusted to raise the overall capacity of the porous medium to transmit water, and thereby match the observed flows. In his opinion, the transmissivity values of the equivalent porous media were raised so much that the model can no longer be used to predict drawdowns. That alleged deficiency in the model is insufficient for two reasons. First, as previously discussed in greater detail, the preponderance of the evidence in this case supports a finding that there are no karst features in the vicinity of the North Tract that would provide preferential pathways for water flow so as to skew the results of the NCF model. Second, Dr. Kincaid, while acknowledging that the NCF model is the best available tool for predicting impacts from groundwater extraction on the aquifer, suggested that a hybrid porous media and conduit model would be a better means of predicting impacts, the development of which would take two years or more. There is no basis for the establishment of a de facto moratorium on CUP permitting while waiting for the development of a different and, in this case, unnecessary model. For the reasons set forth herein, it is found that the NCF model is sufficient to accurately and adequately predict the effects of the Sleepy Creek groundwater withdrawals on the aquifers underlying the property, and to provide reasonable assurance that the standards for such withdrawals have been met. Recharge to the Aquifer Petitioners argued that the modeling results showing little significant drawdown were dependent on the application of unrealistic values for recharge or return flow from irrigation. In a groundwater model, as in the physical world, some portion of the water extracted from the aquifer is predicted to be returned to the aquifer as recharge. If more water is applied to the land surface than is being accounted for by evaporation, plant uptake and evapotranspiration, surface runoff, and other processes, that excess water may seep down into the aquifer as recharge. Recharge serves to replenish the aquifer and offset the effects of the groundwater withdrawal. Dr. Kincaid opined that the NCF modeling performed for the CUP application assigned too much water from recharge, offsetting the model's prediction of impacts to other features. It is reasonable to assume that there is some recharge associated with both agricultural and public supply uses. However, the evidence suggests that the impact of recharge on the overall NCF model results is insignificant on the predicted impacts to Silver Springs, the issue of primary concern. Mr. Hearn ran a simulation using the NCF model in which all variables were held constant, except for recharge. The difference between the “with recharge” and “without recharge" simulations at Silver Springs was 0.002 cfs. That difference is not significant, and is not suggestive of adverse impacts on Silver Springs from the CUP modification. Dr. Kincaid testified that “the recharge offset on the property is mostly impacting the surficial aquifer,” and that “the addition of recharge in this case didn't have much of an impact on the upper Floridan aquifer system.” As such, the effect of adding recharge to the model would be as to the effect of groundwater withdrawal on wetlands or surface water bodies, and not on springs. As previously detailed, the drawdown of the surficial aquifer simulated for the 2.39 mgd “no recharge” scenario were less than 0.05 feet on-site and off-site, except for a predicted 0.07 foot drawdown to the west of the North Tract. The predicted drawdown of the surficial aquifer for the 1.54 mgd “with recharge” scenario was 0.02 feet or less. The preponderance of the evidence supports a finding that drawdowns of either degree are less than that at which adverse impacts to wetlands or surface waters would occur. Thus, issues related to the recharge or return flows from irrigation are insufficient to support a finding or conclusion that the NCF model failed to provide reasonable assurance that the standards for issuance of the CUP modification were met. External Boundaries The boundaries of the NCF model are not isolated from the rest of the physical world. Rather, groundwater flows into the modeled area from multiple directions, and out of the modeled area in multiple directions. Inflows to the model area are comprised of recharge, which is an assigned value, and includes water infiltrating and recharging the aquifer from surface waters; injection wells; upward and downward leakage from lower aquifers; and flow across the external horizontal boundaries. Outflows from the model area include evapotranspiration; discharge to surface waters, including springs and rivers; extraction from wells; upward and downward leakage from lower aquifers; and flow against the external model boundaries. Dr. Kincaid testified that flow across the external model boundary is an unknown and unverifiable quantity which increases the uncertainty in the model. He asserted that in the calibrated version of the model, there is no way to check those flows against data. His conclusion was that the inability of the NCF model to accurately account for external boundary flow made the margin of error so great as to make the model an unreliable tool with which to assess whether the withdrawal approved by the proposed CUP modification will increase or decrease drawdown at Silver Springs. The District correlates the NCF model boundaries with a much larger model developed by the United States Geological Survey, the Peninsula of Florida Model, more commonly referred to as the Mega Model, which encompasses most of the State of Florida and part of Southeast Georgia. The Mega Model provides a means to acknowledge that there are stresses outside the NCF model, and to adjust boundary conditions to account for those stresses. The NCF is one of several models that are subsets of the Mega Model, with the grids of the two models being “nested” together. The 1995 base year of the NCF model is sufficiently similar to the 1993-1994 base year of the Mega Model as to allow for a comparison of simulated drawdowns calculated by each of the models. By running a Mega Model simulation of future water use, and applying the change in that use from 1993 base year conditions, the District was able to come to a representative prediction of specific boundary conditions for the 1995 NCF base year, which were then used as the baseline for simulations of subsequent conditions. In its review of the CUP modification, the District conducted a model validation simulation to measure the accuracy of the NCF model against observed conditions, with the conditions of interest being the water flow at Silver Springs. The District ran a simulation using the best information available as to water use in the year 2010, the calculated boundary conditions, irrigation, pumping, recharge, climatic conditions, and generally “everything that we think constitutes that year.” The discharge of water at Silver Springs in 2010 was measured at 580 cfs. The discharge simulated by the NCF model was 545 cfs. Thus, the discharge predicted by the NCF model simulation was within six percent of the observed discharge. Such a result is generally considered in the modeling community to be “a home run.” Petitioners’ objections to the calculation of boundary conditions for the NCF model are insufficient to support a finding that the NCF model is not an appropriate and accurate tool for determining that reasonable assurance has been provided that the standards for issuance of the CUP modification were met. Cumulative Impact Error As part of the District’s efforts to continually refine the NCF, and in conjunction with a draft minimum flows and levels report for Silver Springs and the Silver River, the cumulative NCF model results for the period of baseline to 2010 were compared with the simulated results from the Northern District Model (NDF), a larger model that overlapped the NCF. As a result of the comparison, which yielded different results, it was discovered that the modeler had “turned off” not only the withdrawal pumps, but inputs to the aquifer from drainage wells and sinkholes as well. When those inputs were put back into the model run, and effects calculated only from withdrawals between the “pumps-off” condition and 2010 pumping conditions, the cumulative effect of the withdrawals was adjusted from a reduction in the flow at Silver Springs of 29 cfs to a reduction of between 45 and 50 cfs, an effect described as “counterintuitive.” Although that result has not undergone peer review, and remains subject to further review and comparison with the Mega Model, it was accepted by the District representative, Mr. Bartol. Petitioners seized upon the results of the comparison model run as evidence of the inaccuracy and unreliability of the NCF model. However, the error in the NCF model run was not the result of deficiencies in the model, but was a data input error. Despite the error in the estimate of the cumulative effect of all users at 2010 levels, the evidence in this case does not support a finding that the more recent estimates of specific impact from the CUP at issue were in error. NCF Model Conclusion As has been discussed herein, a model is generally the best means by which to calculate conditions and effects that cannot be directly observed. The NCF model is recognized as being the best tool available for determining the subsurface conditions of the model domain, having been calibrated over a period of years and subject to peer review. It should be recognized that the simulations run using the NCF model represent the worst—case scenario, with all permittees simultaneously drawing at their full end-of-permit allocations. There is merit to the description of that occurrence as being “very remote.” Thus, the results of the modeling represent a conservative estimate of potential drawdown and impacts. While the NCF model is subject to uncertainty, as is any method of predicting the effects of conditions that cannot be seen, the model provides reasonable assurance that the conditions simulated are representative of the conditions that will occur as a result of the withdrawals authorized by the CUP modification. Environmental Resource Permit The irrigation proposed by the CUP will result in runoff from the North Tract irrigated pastures in excess of that expected from the improved pastures, due in large measure to the diminished storage capacity of the soil. Irrigation water will be applied when the soils are dry, and capable of absorbing water not subject to evaporation or plant uptake. The irrigation water will fill the storage space that would exist without irrigation. With irrigation water taking up the capacity of the soil to hold water, soils beneath the irrigation pivots will be less capable of retaining additional moisture during storm events. Thus, there is an increased likelihood of runoff from the irrigated pastures over that expected with dry soils. The increase in runoff is expected to be relatively small, since there should be little or no irrigation needed during the normal summer wet season. The additional runoff may have increased nutrient levels due to the increased cattle density made possible by the irrigation of the pastures. The CUP has a no—impact requirement for water quality resulting from the irrigation of the improved pasture. Thus, nutrients leaving the irrigated pastures may not exceed those calculated to be leaving the existing pre-development use as improved pastures. Retention Berms The additional runoff and nutrient load is proposed to be addressed by constructing a system of retention berms, approximately 50,0004/ feet in length, which is intended to intercept, retain, and provide treatment for runoff from the irrigated pasture. The goal of the system is to ensure that post—development nutrient loading from the proposed irrigated pastures will not exceed the pre—development nutrient loading from the existing improved pastures. An ERP permit is required for the construction of the berm system, since the area needed for the construction of the berms is greater than the one acre in size, and since the berms have the capability of impounding more than 40 acre-feet of water. The berms are to be constructed by excavating the top nine inches of sandy, permeable topsoil and using that permeable soil to create the berms, which will be 1 to 2 feet in height. The water storage areas created by the excavation will have flat or horizontal bottoms, and will be very shallow with the capacity to retain approximately a foot of water. The berms will be planted with pasture grasses after construction to provide vegetative cover. The retention berm system is proposed to be built in segments, with the segment designed to capture runoff from a particular center pivot pasture to be constructed prior to the commencement of irrigation from that center pivot. A continuous clay layer underlies the areas in which the berms are to be constructed. The clay layer varies from 18 to 36 inches below the ground surface, with at least one location being as much as five feet below the ground surface. As such, after nine inches of soil is scraped away to create the water retention area and construct the berm, there will remain a layer of permeable sandy material above the clay. The berms are to be constructed at least 25 feet landward of any jurisdictional wetland, creating a “safe upland line.” Thus, the construction, operation, and maintenance of the retention berms and redistribution swales will result in no direct impacts to jurisdictional wetlands or other surface waters. There will be no agricultural activities, e.g., tilling, planting, or mowing, within the 25-foot buffers, and the buffers will be allowed to establish with native vegetation to provide additional protection for downgradient wetlands. As stormwater runoff flows from the irrigated pastures, it may, in places, create concentrated flow ways. Redistribution swales will be built in those areas to spread any remaining overland flow of water and reestablish sheet flow to the retention berm system. At any point at which water may overtop a berm, the berm will be hardened with rip—rap to insure its integrity. The berms are designed to intercept and collect overland flow from the pastures and temporarily store it behind the berms, regaining the soil storage volume lost through irrigation. A portion of the runoff intercepted by the berm system will evaporate. The majority will infiltrate either through the berm, or vertically into the subsurface soils beneath it. When the surficial soils become saturated, further vertical movement will be stopped by the impermeable clay layer underlying the site. The runoff water will then move horizontally until it reemerges into downstream wetland systems. Thus, the berm system is not expected to have a measurable impact on the hydroperiod of the wetlands on the North Tract. Phosphorus Removal Phosphorus tends to get “tied up” in soil as it moves through it. Phosphorus reduction occurs easily in permeable soil systems because it is removed from the water through a chemical absorption process that is not dependent on the environment of the soil. As the soils in the retention areas and berms go through drying cycles, the absorption capacity is regenerated. Thus, the retention system will effectively account for any increase in phosphorus resulting from the increased cattle density allowed by the irrigation such that there is expected to be no increase in phosphorus levels beyond the berm. Nitrogen Removal When manure is deposited on the ground, primarily as high pH urine, the urea is quickly converted to ammonia, which experiences a loss of 40 to 50 percent of the nitrogen to volatization. Soil conditions during dry weather conditions are generally aerobic. Remaining ammonia in the manure is converted by aerobic bacteria in the soil to nitrates and nitrites. Converted nitrates and nitrites from manure, along with nitrogen from fertilizer, is readily available for uptake as food by plants, including grasses and forage crops. Nitrates and nitrites are mobile in water. Therefore, during rain events of sufficient intensity to create runoff, the nitrogen can be transported downstream towards wetlands and other receiving waters, or percolate downward through the soil until blocked by an impervious barrier. During storm events, the soils above the clay confining layer and the lower parts of the pervious berms become saturated. Those saturated soils are drained of oxygen and become anaerobic. When nitrates and nitrites encounter saturated conditions, they provide food for anaerobic bacteria that exist in those conditions. The bacteria convert nitrates and nitrites to elemental nitrogen, which has no adverse impact on surface waters or groundwater. That process, known as denitrification, is enhanced in the presence of organic material. The soils from which the berms are constructed have a considerable organic component. In addition to the denitrification that occurs in the saturated conditions in and underlying the berms, remaining nitrogen compounds that reemerge into the downstream wetlands are likely to encounter organic wetland-type soil conditions. Organic wetland soils are anaerobic in nature, and will result in further, almost immediate denitrification of the nitrates and nitrites in the emerging water. Calculation of Volume - BMPTRAINS Model The calculation of the volume necessary to capture and store excess runoff from the irrigated pastures was performed by Dr. Wanielista using the BMPTRAINS model. BMPTRAINS is a simple, easy to use spreadsheet model. Its ease of use does not suggest that it is less than reliable. The model has been used as a method of calculating storage volumes in many conditions over a period of more than 40 years. The model was used to calculate the storage volumes necessary to provide storage and treatment of runoff from fifteen “basins” that had a control or a Best Management Practice associated with them. All of the basins were calculated as being underlain by soils in poorly-drained hydrologic soil Group D, except for the basin in the vicinity of Pivot 6, which is underlain by the more well-drained soil Group A. The model assumed about percent of the property to have soil Group A soils, an assumption that is supported by the evidence. Soil moisture conditions on the property were calculated by application of data regarding rainfall events and times, the irrigation schedule, and the amount of irrigation water projected for use over a year. The soil moisture condition was used to determine the amount of water that could be stored in the on-site soils, known as the storage coefficient. Once the storage coefficient was determined, that data was used to calculate the amount of water that would be expected to run off of the North Tract, known as the curve number. The curve number is adjusted by the extent to which the storage within a soil column is filled by the application of irrigation water, making it unable to store additional rainfall. As soil storage goes down, the curve number goes up. Thus, a curve number that approaches 100 means that more water is predicted to run off. Conversely, a lower curve number means that less water is predicted to run off. The pre-development curve number for the North Tract was based on the property being an unirrigated, poor grass area. A post-development curve number was assigned to the property that reflected a wet condition representative of the irrigated soils beneath the pivots. In calculating the storage volume necessary to handle runoff from the basins, the wet condition curve number was adjusted based on the fact that there is a mixture of irrigated and unirrigated general pasture within each basin to be served by a segment of the retention berm system, and by the estimated 15 percent of the time that the irrigation areas would be in a drier condition. In addition, the number was adjusted to reflect the 8 to 10 inches of additional evapotranspiration that occurs as a result of irrigation. The BMPTRAINS model was based on average annual nutrient-loading conditions, with water quality data collected at a suitable point within Reach 22, the receiving waterbody. The effects of nutrients from the irrigated pastures on receiving waterbodies is, in terms of the model, best represented by average annual conditions, rather than a single highest-observed nutrient value. Pre-development loading figures were based on the existing use of the property as unirrigated general pasture. The pre-development phosphorus loading figure was calculated at an average event mean concentration (EMC) of 0.421 milligrams per liter (mg/l). The post—condition phosphorus loading figure was calculated at an EMC of 0.621 mg/l. Therefore, in order to achieve pre-development levels of phosphorus, treatment to achieve a reduction in phosphorus of approximately 36 percent was determined to be necessary. The pre-development nitrogen loading figure was calculated at an EMC of 2.6 mg/l. The post—condition nitrogen loading figure was calculated at an EMC of 3.3 mg/l. Therefore, in order to achieve pre-development levels of nitrogen, treatment to achieve a reduction in nitrogen of approximately 25 percent was determined to be necessary. The limiting value for the design of the retention berms is phosphorus. To achieve post-development concentrations that are equal to or less than pre-development concentrations, the treatment volume of the berm system must be sufficient to allow for the removal of 36 percent of the nutrients in water being retained and treated behind the berms, which represents the necessary percentage of phosphorus. In order to achieve the 36 percent reduction required for phosphorus, the retention berm system must be capable of retaining approximately 38 acre—feet of water from the 15 basins. In order to achieve that retention volume, a berm length of approximately 50,000 linear feet was determined to be necessary, with an average depth of retention behind the berms of one foot. The proposed length of the berms is sufficient to retain the requisite volume of water to achieve a reduction in phosphorus of 36 percent. Thus, the post-development/irrigation levels of phosphorus from runoff are expected to be no greater than pre-development/general pasture levels of phosphorus from runoff. By basing the berm length and volume on that necessary for the treatment of phosphorus, there will be storage volume that is greater than required for a 25 percent reduction in nitrogen. Thus, the post-development/irrigation levels of nitrogen from runoff are expected to be less than pre- development/general pasture levels of nitrogen from runoff. Mr. Drummond admitted that the design of the retention berms “shows there is some reduction, potentially, but it's not going to totally clean up the nutrients.” Such a total clean-up is not required. Rather, it is sufficient that there is nutrient removal to pre-development levels, so that there is no additional pollutant loading from the permitted activities. Reasonable assurance that such additional loading is not expected to occur was provided. Despite Mr. Drummond’s criticism of the BMPTRAINS model, he did not quantify nutrient loading on the North Tract, and was unable to determine whether post-development concentrations of nutrients would increase over pre-development levels. As such, there was insufficient evidence to counter the results of the BMPTRAINS modeling. Watershed Assessment Model In order to further assess potential water quantity and water quality impacts to surface water bodies, and to confirm stormwater retention area and volume necessary to meet pre-development conditions, Sleepy Creek utilized the Watershed Assessment Model (WAM). The WAM is a peer-reviewed model that is widely accepted by national, state, and local regulatory entities. The WAM was designed to simulate water balance and nutrient impacts of varying land uses. It was used in this case to simulate and provide a quantitative measure of the anticipated impacts of irrigation on receiving water bodies, including Mill Creek, Daisy Creek, the Ocklawaha River, and Silver Springs. Inputs to the model include land conditions, soil conditions, rain and climate conditions, and water conveyance systems found on the property. In order to calculate the extent to which nutrients applied to the land surface might affect receiving waters, a time series of surface water and groundwater flow is “routed” through the modeled watershed and to the various outlets from the system, all of which have assimilation algorithms that represent the types of nutrient uptakes expected to occur as water goes through the system. Simulations were performed on the North Tract in its condition prior to acquisition by Sleepy Creek, in its current “exempted improved pasture condition,” and in its proposed “post—development” pivot-irrigation condition. The simulations assessed impacts of the site conditions on surface waters at the point at which they leave the property and discharge to Mill Creek, and at the point where Mill Creek merges into the Ocklawaha River. The baseline condition for measuring changes in nutrient concentrations was determined to be that lawfully existing at the time the application was made. Had there been any suggestion of illegality or impropriety in Sleepy Creek’s actions in clearing the timber and creating improved pasture, a different baseline might be warranted. However, no such illegality or impropriety was shown, and the SJRWMD rules create no procedure for “looking back” to previous land uses and conditions that were legally changed. Thus, the “exempted improved pasture condition” nutrient levels are appropriate for comparison with irrigated pasture nutrient levels. The WAM simulations indicated that nitrogen resulting from the irrigation of the North Tract pastures would be reduced at the outflow to Mill Creek at the Reach 22 stream segment from improved pasture levels by 1.7 percent in pounds per year, and by 0.6 percent in milligrams per liter of water. The model simulations predicted a corresponding reduction at the Mill Creek outflow to the Ocklawaha River of 1.3 percent in pounds per year, and 0.5 percent in milligrams per liter of water. These levels are small, but nonetheless support a finding that the berm system is effective in reducing nitrogen from the North Tract. Furthermore, the WAM simulations showed levels of nitrogen from the irrigated pasture after the construction of the retention berms to be reduced from that present in the pre- development condition, a conclusion consistent with that derived from the BMPTRAINS model. The WAM simulations indicated that phosphorus from the irrigated North Tract pastures, measured at the outflow to Mill Creek at the Reach 22 stream segment, would be reduced from improved pasture levels by 3.7 percent in pounds per year, and by 2.6 percent in milligrams per liter of water. The model simulations predicted a corresponding reduction at the Mill Creek outflow to the Ocklawaha River of 2.5 percent in pounds per year, and 1.6 percent in milligrams per liter of water. Those levels are, again, small, but supportive of a finding of no impact from the permitted activities. The WAM simulations showed phosphorus in the Ocklawaha River at the Eureka Station after the construction of the retention berms to be slightly greater than those simulated for the pre-development condition (0.00008 mg/l) -- the only calculated increase. That level is beyond miniscule, with impacts properly characterized as “non- measurable” and “non-detectable.” In any event, total phosphorus remains well below Florida’s nutrient standards. The WAM simulations were conducted based on all of the 15 pivots operating simultaneously at full capacity. That amount is greater than what is allowed under the permit. Thus, according to Dr. Bottcher, the predicted loads are higher than those that would be generated by the permitted allocation, making his estimates “very conservative.” Dr. Bottcher’s testimony is credited. During the course of the final hearing, the accuracy of the model results was questioned based on inaccuracies in rainfall inputs due to the five-mile distance of the property from the nearest rain station. Dr. Bottcher admitted that given the dynamics of summer convection storms, confidence that the rain station rainfall measurements represent specific conditions on the North Tract is limited. However, it remains the best data available. Furthermore, Dr. Bottcher testified that even if specific data points simulated by the model differ from that recorded at the rain station, that same error carries through each of the various scenarios. Thus, for the comparative purpose of the model, the errors get “washed out.” Other testimony regarding purported inaccuracies in the WAM simulations and report were explained as being the result of errors in the parameters used to run alternative simulations or analyze Sleepy Creek’s simulations, including use of soil types that are not representative of the North Tract, and a misunderstanding of dry weight/wet weight loading rates. There was agreement among witnesses that the WAM is regarded, among individuals with expertise in modeling, as an effective tool, and was the appropriate model for use in the ERP application that is the subject of this proceeding. As a result, the undersigned accepts the WAM simulations as being representative of comparative nutrient impacts on receiving surface water bodies resulting from irrigation of the North Tract. The WAM confirmed that the proposed retention berm system will be sufficient to treat additional nutrients that may result from irrigation of the pastures, and supports a finding of reasonable assurance that water quality criteria will be met. With regard to the East Tract, the WAM simulations showed that there would be reductions in nitrogen and phosphorus loading to Daisy Creek from the conversion of the property to irrigated pasture. Those simulations were also conservative because they assumed the maximum number of cattle allowed by the nutrient balance, and did not assume the 30 percent reduction in the number of cattle under the NMP so as to allow existing elevated levels of phosphorus in the soil from the sod farm to be “mined” by vegetation. Pivot 6 The evidence in this case suggests that, unlike the majority of the North Tract, a small area on the western side of the North Tract drains to the west and north. Irrigation Pivot is within that area. Dr. Harper noted that there are some soils in hydrologic soil Group A in the vicinity of Pivot 6 that reflect soils with a deeper water table where rainfall would be expected to infiltrate into the ground. Dr. Kincaid’s particle track analysis suggested that recharge to the surficial aquifer ultimately discharges to Mill Creek, except for recharge at Pivot 11, which is accounted for by evapotranspiration, and recharge at Pivot 6. Dr. Kincaid concluded that approximately 1 percent of the recharge to the surficial aquifer beneath the North Tract found its way into the upper Floridan aquifer. Those particle tracks originated only on the far western side of the property, and implicated only Pivot 6, which is indicative of the flow divide in the Floridan aquifer. Of the 1 percent of particle tracks entering the Floridan aquifer, some ultimately discharged at the St. John’s River, the Ocklawaha River, or Mill Creek. Dr. Kincaid opined, however, that most ultimately found their way to Silver Springs. Given the previous finding that the Floridan aquifer beneath the property is within the Silver Springs springshed for less than a majority of the time, it is found that a correspondingly small fraction of the less than 1 percent of the particle tracks originating on the North Tract, perhaps a few tenths of one percent, can reach Silver Springs. Dr. Bottcher generally agreed that some small percentage of the water from the North Tract may make it to the upper Floridan aquifer, but that amount will be very small. Furthermore, that water reaching the upper Floridan aquifer would have been subject to the protection and treatment afforded by the NMP and the ERP berms. The evidence regarding the somewhat less restrictive confinement of the aquifer around Pivot 6 is not sufficient to rebut the prima facie case that the CUP modification, coupled with the ERP, will meet the District’s permitting standards. Public Interest The primary basis upon which Sleepy Creek relies to demonstrate that the CUP is “consistent with the public interest” is that Florida's economy is highly dependent upon agricultural operations in terms of jobs and economic development, and that there is a necessity of food production. Sleepy Creek could raise cattle on the property using the agriculturally-exempt improved pastures, but the economic return on the investment would be questionable without the increased quality, quantity, and reliability of grass and forage crop production resulting from the proposed irrigation. Sleepy Creek will continue to engage in agricultural activities on its properties if the CUP modification is denied. Although a typical Florida beef operation could be maintained on the property, the investment was based upon having the revenue generation allowed by grass-fed beef production in order to realize a return on its capital investment and to optimize the economic return. If the CUP modification is denied, the existing CUP will continue to allow the extraction of 1.46 mgd for use on the East Tract. The preponderance of the evidence suggests that such a use would have greater impacts on the water levels at Silver Springs, and that the continued use of the East Tract as a less stringently-controlled sod farm would have a greater likelihood of higher nutrient levels, particularly phosphorus levels which are already elevated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein it is RECOMMENDED that the St. Johns River Water Management District enter a final order: approving the issuance of Consumptive Use Permit No. 2-083-91926-3 to Sleepy Creek Lands, LLC on the terms and conditions set forth in the complete Permit Application for Consumptive Uses of Water and the Consumptive Use Technical Staff Report; and approving the issuance of Environmental Resource Permit No. IND-083-130588-4 to Sleepy Creek Lands, LLC on the terms and conditions set forth in the complete Joint Application for Individual and Conceptual Environmental Resource Permit and the Individual Environmental Resource Permit Technical Staff Report. DONE AND ENTERED this 29th day of April, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2015.
Findings Of Fact Harold Click and Harold Peterson, Petitioners, are sole owners of property which borders Dunn's Creek, one of the largest tributaries to the St. John's River in Putnam County, and which is described as Lots 80, 88, and 89, Section 38, Township 11 South, Range 27 East. Dunn's Creek is a Class III water body of the state. Petitioners applied for a dredge and fill permit initially in 1980 but Respondent issued an Intent to Deny in January, 1981. A second permit application was submitted in 1982 on behalf of Petitioners following a site visit by representatives of Respondent in June, 1981, but again an Intent to Deny was issued in September, 1982. A third application was submitted on or about May 3, 1984, following another site visit by Respondent's representatives, but the Intent to Deny which resulted in this hearing was issued on December 5, 1984. During these site visits, Respondent's representatives offered suggestions about what might be an acceptable project but gave no assurances that the application, as submitted on May 3, 1984, would be permitted. The project which Petitioners now propose would include the placement of pilings and other fill materials within the waters and landward extent of the waters of the state which would result in the alteration of at least 10,000 square feet of the swamp floodplain community of Dunn's Creek. This proposed filling will degrade the water quality of the areas affected by replacing periodically inundated wetlands with uplands. Although the project also includes construction of a fill road with a bridge over a natural slough on Click's lot, Respondent's expert witness Tyler testified that this portion of the project alone would not have resulted in the Intent to Deny. According to Tyler, the key area of objection was the .23 acres Petitioners proposed to fill which was within Respondent's jurisdiction and which would have widened an already existing berm. This widening would have allowed the placement of two septic tanks and two, dwellings on pilings on the property and an access driveway through Click's portion of the property to Peterson's. As proposed, fill was to be placed over a total of .35 acres, with .23 acres being in the waters of the state or to the landward extent of waters of the state. Bald cypress trees or other species listed in Rule 17-4.02(17), Florida Administrative Code, are present in part of the wetland area occupied by the project site in greater numbers, biomass, and aerial extent than competing plant species or communities. Without appropriate pollution control measures, the proposed project could reasonably be expected to result in an adverse change in the biological integrity, bacteriological quality, biochemical oxygen demand and the concentration of dissolved oxygen, turbidity and nutrients in some of the waters on the project site, in Dunn's Creek, and in discharge areas elsewhere. The filling associated with the project can be expected to have a long- term detrimental impact on water quality and biological resources, according to Respondent's expert witness Deuerling. Natural habitats and rainwater storage areas would be destroyed or detrimentally altered, as would the natural filtration function performed by the swamp areas to be filled. In the immediate vicinity of Petitioners' lots, Respondent has denied two dredge and fill permits and there are an additional two permit applications which are pending. Deuerling has also performed site visits at three other locations along Dunn's Creek in the immediate vicinity of Petitioners' lots, and it can be expected that other permit applications for similar projects will be submitted if Petitioners are granted a permit.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order denying Petitioners' application for a permit. DONE and ENTERED this 5th day of September, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1985. COPIES FURNISHED: Peter B. Heebner, Esquire 523 North Halifax Avenue Daytona Beach, Florida 32018 Ross S. Burnaman Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner David M. Antoniak is the owner of property located at 1211 Hardman Drive in Orlando, Florida. The property fronts on a cove of Lake Lancaster and is adjacent to a stormwater drainage pipe operated by Orange County. When petitioner purchased the property in approximately February of 1978, the general waterfront around his property, as described by petitioner and other neighboring landowners, was filled with weeds which were decaying, trash and other debris, bad odors and bugs. Petitioner attempted to clean up the waterfront area, but was unsuccessful. In August of 1978, petitioner undertook the project which is presently in dispute. He removed approximately two truckloads of muck, weeds and debris from the water and the water's edge, placed a cypress log retaining wall between his property and the waters of Lake Lancaster, placed approximately one truckload of beach sand between the wall and the water, deposited an undetermined amount of fill material landward of the wall and put sod on the soil landward of the wall. Petitioner constructed the cypress log retaining wall in order to level out his lot, prevent runoff to the lake and to separate the dirt from the sand. He continues to fertilize his lawn and to spray it for bugs. The only portion of the retaining wall and property waterward of the natural ordinary high water line of Lake Lancaster is an area approximating eight by four feet. In March of 1979, petitioner applied to the DER for after-the-fact approval of construction of the retaining wall waterward of the ordinary high water line of the lake and the filling. After a field evaluation, DER gave notice of its intent to deny a permit. Lake Lancaster is a Class III body of water. The lake receives outfall from approximately twelve stormwater drainage pipes, one of which is located adjacent to petitioner's property. Aquatic plants and weeds are especially beneficial near such outfalls because they serve to assimilate and eliminate nutrients, stabilize sediments, and filter out suspended materials. Such vegetation also provides a habitat for fish. Although the area in dispute is small, removal of the aquatic vegetation significantly degrades the water quality of Lake Lancaster because of the area's location in a cove and the adjacent stormwater drainage pipe. The placement of the cypress log retaining wall will cause hydrological changes in the nature of increased turbidity due to wave action. Vertical walls may also lead to erosion. While the seawall will serve to reduce the initial flush of run off (of grass clippings, for example), fertilizers and bug sprays used on adjacent upland property will still percolate into the soil and eventually run off to the lake. The backfilling in the 8 by 4 foot space waterward of the ordinary high water level reduces the size of the lake and could possibly relate to flooding problems.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is recommended that the petitioner's application for a permit be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of October, 1980. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1980. COPIES FURNISHED: William A. Harmening Stanley, Harmening and Lovett Post Office Box 1706 Orlando, Florida 32802 Charles G. Stephens Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 David M. Antoniak 1121 Hardman Drive Orlando, Florida 32806 Jake Varn, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether the Southwest Florida Water Management District should issue the Individual Environmental Resource Permit (the "Individual ERP," the "ERP" or the "Permit") applied for by Entryway Developers, LLC ("Entryway")? The ERP was preliminarily issued by the District as Draft Permit No. 43024788.000 (the "Draft Permit"). If it becomes final, it will allow Entryway's successor in interest, Westfield Homes of Florida ("Westfield") both to construct a new surface water management system in service of a proposed subdivision, known as Ashley Glen, in southern Pasco County, and to conduct dredge and fill activities on site.
Findings Of Fact The Parties The Petitioner in this proceeding is Dr. Octavio Blanco. A veterinarian, citizen of Florida and a resident of Pasco County, he holds a property interest (described below) in property immediately adjacent to Ashley Glen. One of the three Co-Respondents, the Southwest Florida Water Management District (the "District" or "SWFWMD") is a public entity created by Chapter 61-691, Laws of Florida. It exists and operates under Chapter 373, Florida Statutes (the "Florida Water Resources Act of 1972" or the "Act"). The District is the administrative agency charged with the responsibility to conserve, protect, manage and control the water resources within its geographic boundaries. It does so through administration and enforcement of the Act and the rules promulgated to implement the Act in Chapter 40D, Florida Administrative Code. Entryway, the second of the three Co-Respondents, is a limited liability company and the original applicant for the Permit. Westfield, the third of the Co-Respondents, is a Florida general partnership and the current owner of the Ashley Glen Project. If the Permit is issued by way of a final order, Westfield will be the permit-holder. An application for an Individual ERP must be signed by the owner of the property or the owner's authorized agent. If signed by an agent, a letter of authority must be submitted by the owner. See Fla. Admin. Code R. 40D-4.101(2). Westfield was not the owner of the property on the site of the Project at the time of the filing of the application. Entryway was the owner. Westfield filed with DOAH a letter of authority received from Entryway.2 The letter authorized Westfield to sign the Individual ERP application. Ashley Glen and the Blanco Property "Ashley Glen-Villages 2-5" ("Ashley Glen" or as it is referred to in the Draft Permit, the "Project") is a 266.36-acre residential subdivision planned to be divided into more than 400 lots. Located in southern Pasco County, the subdivision is on the north side of State Road 54, approximately three miles west of US 41 and less than 1000 feet east of the Suncoast Parkway. To the north, Ashley Glen is bounded along an abandoned railroad right-of-way. The right-of-way extends beyond the northwest and northeast corners of the property in both easterly and westerly directions. There are 72.69 acres of surface waters and wetlands on the Ashley Glen site. Among the 19 isolated and contiguous wetlands on the property is a portion of a Cypress-forested wetland system (the "Cypress-forested Wetland"). The Cypress-forested Wetland was described at hearing by one of Westfield's experts as "a large wetland" (tr. 41) that is typical of the area. As with similar wetland systems throughout the state, the Cypress-forested Wetland undergoes "seasonal drawdowns and dry-outs, and in the wet season . . . flood[s] out to the edges and even beyond in certain storm events." (Tr. 43). The portion of the Cypress-forested Wetland that is on the Ashley Glen site is identified by the Permit as "Wetland A3." Wetland A3 is 29.94 acres. The entire Cypress-forested Wetland system south of the railroad bed of which Wetland A3 is a part is at least twice as large. Most of the remainder of the Cypress Wetland south of the railroad right-of-way is on the Blanco Property. It appears from exhibits used during the hearing that the Cypress Wetland originally extended north of where the railroad right-of-way now lies in its abandoned state. The connection was indicated also in the testimony of Mr. Courtney (Westfield's "wetlands" and "ERP" expert3) when he stated that there was potential for contiguity with systems to the north. Aerial photographs used at hearing indicated that the Cypress- forested wetland system was, indeed, part of the contiguous wetland system to the north of the railroad bed. The contiguity between the Cypress-forested Wetland and the system to the north was confirmed by Dr. Baca, Petitioner's wetland ecologist, on the basis of on-site examinations. Dr. Baca believes the Cypress-forested Wetland to be part of a much larger system that extends northward and to the west and that is contiguous with the Gulf of Mexico. He determined that despite the establishment of the railroad bed, the Cypress-forested Wetland remains connected to the contiguous wetland system to the north by way of pipes under and through the bed. Drainage on the Ashley Glen site is primarily from south to north with significant contribution from a drainage basin to the east. Drainage from the south is channelized by a ditch that runs nearly the length of the property from Wetland C12 at the southeastern tip to Wetland A3 near the site's northern boundary. Drainage from the eastern basin toward Wetland A3 is intercepted by the ditch. The result is that the drainage from the east is captured before it reaches Wetland A3 and drainage from the south bypasses Wetland A3 to be discharged northward at the railroad bed so that all of the drainage is "short-circuited by [the] ditch to the actual discharge location of [Wetland] A3." (Tr. 41). The discharge location from Wetland A3 was more precisely described at hearing by Mr. Courtney as "the confluence of [Wetland] A3 and the railroad bed where [the ditch] discharges off-site flows and [the] easterly to westerly flows into pipes that go under [the] old railroad bed " (Tr. 40-41). This testimony supports Dr. Baca's confirmation of the connection between the Cypress-forested Wetland and the contiguous wetland system north of the railroad bed. To the west of the ditch and the Ashley Glen site is the Blanco property. It has been held by Dr. Blanco's family for a period spanning six decades. Its boundaries roughly form an elongated narrow rectangle. From the eastern and western ends of 400 feet of frontage on State Road 54 (the southern boundary of the Blanco Property) the eastern and western boundaries run parallel of each other approximately 8000 feet to the north where the northernmost boundary of the Blanco Property meets the abandoned railroad right-of-way. The majority of the northern half of the Blanco Property is in the Cypress-forested Wetland. In addition to the drainage from the south and the east received prior to the digging of the ditch, the wetland receives drainage from the west which traverses the property between the Blanco Property and the Suncoast Parkway. With the exception of one acre on which sits the house in which Dr. Blanco's mother lives, the Blanco Property is presently the subject of a Land Trust Agreement. Through this unrecorded instrument, dated December 19, 1996, Dr. Blanco has an ownership interest in the property. Dr. Blanco's concern for the property pre-dates his ownership interest conferred by the trust agreement. He lived on the property from the age of three until he left for college. During that time, he "constantly" (tr. 374) observed many species of wildlife in the Cypress-forested Wetland, as he explained at hearing: Starting with mammals, I observed many deer, foxes, coons, coyotes, squirrels, ground squirrels, fox squirrels. And then numerous bird species . . . from the sandhill cranes to various storks and herons and egrets and . . . [m]ostly aquatic birds . . . many hawks [and] an occasional eagle [as well]. A lot of animals, such as frogs and snails. The apple snails particularly I've noticed. I've always admired them and the way they lay their eggs up on the water line. So, I've noticed them for years out there [along with] [m]any snakes [and], alligators. Id. Over the years, Dr. Blanco has observed changes, especially among the wading birds and the aquatic species: You see less and less of them. The periods where there's consistent water to support their life has grown shorter as time goes by. And this time of year where there's water, the life is pretty abundant. But then, in recent years, I've noticed that the time period seems to be getting shorter and shorter. And then . . . when I go out there, I use all my senses, not just my eyes, and the place just sounds different when it's full of life versus when it's, essentially, dried up. (Tr. 374-375). Just as in any typical cypress-forested wetland, during wet periods, the cypress trees in the Cypress-forested Wetland "will be inundated and the ground will be saturated to the edge of the uplands." (Tr. 45). During these times, the majority of the storms that deliver rain are considered small, that is, rainstorms of below half an inch. Much bigger storms, of course, also contribute to the water that stands in the wetland from time to time. "By the same token, in droughts or dry seasons, the water levels . . . typically drop to at or below the ground level." (Tr. 46). The dry periods, if part of the natural cycles between hydro-periods, contribute to the health of the system. For example, during dry periods nutrients are oxidized, one of the functions of a wetland. In 2002, the Cypress-forested Wetland was dried out from mid-March at the end of the dry season until the end of July, a period of drought. The dry season and the occasional drought contribute, of course, to a lowering of the water table below the surface of the wetland. But the water table may also be lowered by the pumping of water from wellfields in the area, one to the northwest of the site, another to the southeast. That pumping is monitored by the District. The District takes action to minimize damage from any lowering of the water table caused by pumping water from the wellfields. Apple snails have been recently observed in the Cypress-forested Wetland. "Apple snails are unique in that they're the sole food of the snail kite, an endangered species." (Vol. III, p. 61). There are snags and dead trees in the Cypress-forested Wetland as well. Used by many birds and mammals, they provide particularly good habitat for woodpeckers. The Cypress-forested Wetland is not a pristine wetland. The establishment of the railroad bed had an impact. In its abandoned state, the railroad bed continues to have an influence on its discharge to the north. The Suncoast Parkway "might have had some impact." (Tr. 53). Cattle grazing on both the Blanco Property and the Ashley Glen site has had an impact on the herbaceous ground cover layer and on the wetland's water quality although it is unlikely that the cows grazed in the Cypress-forested Wetland. ("Generally, [cows] don't graze on . . . wetland plants, because they're either bitter tasting or [have] poor textures . . . .") (Vol. III, p. 58). The well- fields in the area have had historic impacts mitigated, as mentioned, through implementation of an area-wide hydrology restoration plan by SWFWMD. The most significant impact to the Cypress-forested Wetland resulted from the combination of the construction of State Road 54 and the ditch's channelization of stormwater runoff migrating through the center of the Ashley Glen site. Had the property not been ditched, the stormwater runoff and any other migrating water would have been conveyed by sheet flow into the Cypress-forested Wetland. Despite the varied impacts over the years, the Cypress-forested wetland remains ratable today "as a mid to higher level quality wetland for the area." (Tr. 43). The Draft Permit Application for the permit was submitted on February 7, 2003. After eight formal submittals of information in response to questions by the District, a Draft Permit was issued on December 16, 2003. The Draft Permit lists the "Project Name as Ashley Glen - Villages 2-5" and otherwise refers to Ashley Glen as the "Project." The Permit allows the Project to fill 43.75 acre-feet of the 100-year flood plain on the Ashley Glen site. At the same time, the Permit allows 51.98 acre-feet of excavation on- site. Project construction will result in the filling of 1.61 acres of forested and non-forested wetlands and secondary impacts to at least one of the isolated wetlands. The permit speaks to secondary impacts to another of the wetlands and surface waters on-site and finds that there are none: "[O]ne isolated wetland, 0.37 acre in size, and 2.81 acres of surface waters will be impacted, however, since these areas provide no significant habitat functions, no habitat mitigation will be required." District Ex. 5, pgs. 3-4. The mitigation for the impacts that require mitigation, in the District's view, includes creation of 2.89 acres of wetlands and preservation of 65.32 acres of wetlands. The Permit also authorizes the construction of a new surface water management system (the "SWM System") to serve Ashley Glen. The Surface Water Management System The SWM System consists of six wet detention ponds, four isolated wetland treatment systems, an attenuation pond, and an associated conveyance and discharge structure. The wet detention ponds and the isolated wetland treatment systems were designed in accordance with Section 5.2 of the District's Basis of Review. Westfield Ex. 6 depicts the "generalities of the [SWS] [S]ystem in [Ashley Glen's] built environment." (Tr. 56). Key pipe areas are shown in white on the exhibit. For example, the existing ditch is re-located slightly to the east; the exhibit shows in white where water is piped from the northern terminus of the new, re-located ditch into Pond P11. This piped water will consist of drainage from the south that is now conveyed by the existing ditch and drainage from the east that passes through Wetland W2 and Wetland W1. In keeping with the historical drainage pattern that preceded the existence of the ditch, drainage from the basin on the eastern part of the property that passes through Wetland F4, Wetland E4, and Wetland D5 will also be discharged westward into P11 to be discharged at a point toward the southernmost part of Wetland A3, the wetland's headwaters. The discharge from P11 was described by Mr. Courtney at hearing: The discharge of P11 was placed up in the headwaters of A3 [where] . . . the [existing] ditch short-circuited the discharge of . . . waters to the discharge point of A3. [An SWM System] . . . control structure is placed at the headwaters of A3, a much better situation for A3, given that the quantities and quality of water is going to be the same or better, because water is now going to be reintroduced to the headwaters of A3 as opposed to short- circuiting it. (Tr. 57). Mr. Courtney estimated that one-fourth to one-half of the surface water flows on the property coming from the south and the east were routed unnaturally by the ditch to Wetland A3's discharge point at the railroad right-of-way at the northernmost point of the wetland. The project re-routes these waters to a point near the headwaters of Wetland A3 (in its southernmost part). Surficial flow, therefore, that had by- passed Wetland A3 because of ditching will be routed by the SWM System to the headwaters of Wetland A3 after treatment and attenuation provided that the attenuation pond reaches a high enough elevation. Any water discharged to Wetland A3 from the attenuation pond will flow in a northerly direction (the historical flow pattern) through the wetland to the point of discharge at the railroad bed. Provided that the restored flow is of good quality, restoration of the hydrology is a benefit to the system. On this point, Dr. Baca agreed with Mr. Courtney. The Cypress-forested Wetland on the Blanco Property and the wetland system that extends north of the railroad bed "are dependent upon the treatment, the care and the protection afforded the wetland on the Ashley Glen property." (Vol. III, pg. 60). Wetlands B8 and D3, surrounded by developed lots, are served by detention ponds. Internal drainage from the lots is collected from street systems. Pop-off from the systems goes either directly to a detention pond and then a wetland or to a sump and then to a wetland. After treatment, the drainage is conveyed to Pond P11. Pond P10, a relatively small detention pond, is situated at the headwaters of Wetland A3. The pond treats runoff and flows into Wetland A3. Pond P11, although not a stormwater detention pond and for which the applicant receives no treatment credit, is nonetheless "a good backup treatment mechanism for stormwater that is meeting state water quality standards as discharged from all of the drainage systems in the uplands." (Tr. 59). Through the attenuation process, moreover, it will perform some treatment that meets or exceeds the minimal requirements of ERP permitting. After attenuation and whenever the pond reaches a certain elevation, waters are discharged into Wetland A3. A major point of focus of Dr. Blanco's case is the excavation of the attenuation pond and its interaction with Wetland A3. The attenuation pond is designated in the Draft Permit as Pond P11 ("P11"). P11 If excavated according to present plans, P11 will be 25 feet deep at its deepest point (less than one percent of the pond). "[T]he deepest areas run along the corridor that goes between [Wetlands] B6 and D5." (Tr. 166). The shallowest areas of P11 are along the western edge of the pond where a shelf will be constructed. The surface area of the pond will take up approximately 40 acres. (See endnote 4). The Respondents refers to P11 as a "100 year flood plain compensation area." (Tr. 116). The Permit's "Water Quantity/Quality list of ponds denominates P11's "treatment type" as "[a]ttenuation" which would make it an attenuation pond. Dr. Blanco prefers to call P11 a borrow pit asserting that one reason for its excavation is to obtain fill for the development. Dr. Blanco's labeling of P11 as a borrow pit appears to be correct since the District referred to it as a borrow pit and since significant dredging on site is allowed by the Draft Permit. Whether Dr. Blanco's and the District's nomenclature for P11 is accurate or not, there is no dispute that P11 is part of the stormwater management system. The Draft Permit ascribes to it the function of attenuation: the process by which flow is slowed that allows compounds to be reduced in concentration over time. It is a significant component of the SWM System. Conveyance of water of sufficient quality that has undergone attenuation from the pond into a point near the headwaters of Wetland A3, moreover, poses the potential to improve the wetland's hydrology. Dr. Blanco asserts that fill needed by the Project could be obtained off-site. In other words, P11 does not need to be excavated to obtain the fill. But obtaining fill material is not the only purpose of P11 since it also provides retention and attenuation functions. Dr. Blanco's main concern with P11, however, is not its status as a borrow pit. His concern is based on three of its characteristics, the latter two of which relate to its nature as a borrow pit: 1) its placement, excavated directly adjacent to Wetland A-3; 2) its depth, at its deepest point, 25 feet; and 3) its size; close to 40 acres in open surface area.4 Due to sheer size of P11's open surface area, significant volumes of water in P11 will be lost routinely to evapo-transpiration. When the water level in P11 is below the water level in Wetland A3, moreover, the pond will draw water out of the Cypress-forested Wetland. Whenever the water is below its control elevation, it will take a considerable volume of water to raise it to the elevation appropriate to protect Wetland A3 and the rest of the Cypress-forested Wetland. Reaching the control elevation will occur only when all available storage has been filled and contributions of water (from rainfall, stormwater run-off, or by way of conveyance through the SWM System or otherwise) exceed loss through evaporation and seepage, downward and lateral. The parties disagree as to whether the applicant has provided the assurances necessary to justify issuance of the Permit. The most contentious point is about the effect P11 will have on Wetland A3 and the extended Cypress-forested Wetland. Westfield (with the support and concurrence of the District) bases its case for assurances, in the main, on a type of computer modeling. Dr. Blanco, on the other hand, presented testimony that criticized the computer modeling that was done in this case in support of the application. That computer modeling is known as "Interconnected Pond Routing" or "ICPR." ICPR Interconnected Pond Routing ("ICPR") is a type of hydrological computer model that takes into account surface water flows. It does not take into account groundwater flows, downward or lateral seepage or the lowering of the water table by well-field pumping. It models the surface water hydrology of a site as it might be affected, for example, by detention basins and channel pipes. It models pre-design of a site to be developed and then post-design of a site prior to actual development to provide comparative analysis. It is also a predictive tool. As with any predictive tool, its accuracy can only be definitively determined by observation and collection of data after-the-fact, in this case, after development. ICPR modeling is used in particular for stormwater and surface water management systems. For that reason, it was used by Westfield to support the ERP application in this case. Before ICPR modeling of the Ashley Glen site and the surrounding area was conducted, topographic information was collected by survey. The results of the survey and the modeling that followed resulted in several of the exhibits used by Westfield at hearing. For example, the topographic information and ICPR were used to produce a post-development map (Westfield Exhibit 12). In addition to sub-basins reflected in Westfield Exhibit 11 that relate to the hydrology of the site the map shows two pods (a "Southern Pod" and a "Northern Pod") of development. Approximately 400 feet of the Southern Pod will abut Wetland A3 on the pod's western edge. The location of the Southern Pod will necessitate re-location of the existing ditch. The Northern Pod, in contrast, will be separated from Wetland A3 by both P11 and the proposed road. The Northern Pod, the larger of the two proposed pods of development, is farther from Wetland A3 although it is separated from Wetland C2 solely by the proposed road. The sub-basins on Westfield Ex. 12 are reflected in Westfield Ex. 11, the result of pre-design modeling that revealed three off-site basins composed of 218, 544 and 908 acres. Each sub-basin corresponds to a detention pond designed to assist in enhancing the site's post-development hydrology. The modeling was also used to introduce P11, Westfield's proposed 100-year flood compensation area that would act as a detention pond for attenuation. Each sub-basin used in the modeling exercises covers an area for which there is information relative to size, curve number and time of concentration, all of which was entered into the modeling. Kyle Cyr, a registered P.E. in the State of Florida, and an expert in ICPR and stormwater modeling, described at hearing what happened next: The input is then directed towards a node, which we call the wetlands of the node or detention ponds. And then each node is interlinked by either channels, pipes or weirs, swells, drop structures. * * * [W]e check the models for pre and post to make sure there's no adverse impacts to off- site properties. No additional flows are allowed to leave the site. * * * We end up with flows, staging elevations for each node. . . . [The result is] [a] drainage report. [The] drainage report has a pre- and post- analysis in it. * * * [The] drainage report [is used] to design the site, to design the elevations and grading of the roads and [then] the lot and culvert sizes. (Tr. 147, 148). The drainage report and the information with regard to the design was then submitted by Westfield to the District together with a "pond wetland hydrology interaction report" and modeling with regard to "several minor storm events, a one-inch, a two-inch and a mean-annual event run . . . like a normal rainfall in the area." (Tr. 150). Various hydrographs for storm events were prepared by Westfield. In general, storm events should assist the hydrology of Wetland A3. The SWM System poses the potential that in storm events, P11 will discharge water to Wetland A3. The discharge pre-supposes that P11 will be at an appropriate elevation to allow the discharge with the addition of the surface water conveyed by the system into the pond. Hydrographs of the time versus inflow into Wetland A3 for pre-development and post-development conditions for the storm events were prepared by Westfield. For the one-inch storm and the mean-annual events, provided the pond is at an appropriate elevation prior to the storm (a proviso applicable to all of the hydrograph information), it is reasonably expected that there will be slight increases in peak flow after the development than before. For the two-inch storm, it is reasonably expected that there will be a slight drop in peak flow. None of the changes should have a negative effect on Wetland A3 so long as P11 maintains appropriate water elevations so that water has not been drawn out of the wetland that would have sustained the wetland had P11 not been excavated.5 Hydrographs that depict expected volume over a 72-hour time frame were also prepared based on the same storm events. During the applicable time frame for two-inch and mean-annual events, it is reasonably expected that there will be a slight increase in the volume of water entering Wetland A3 after development. As the result of a one-inch storm event, it is reasonable to expect there to be a slight decrease in volume over the 72 hours. None of the changes are expected to have a negative effect on Wetland A3, again, provided that appropriate water elevations are maintained in P11. Finally, hydrographs were prepared for time-versus- inflow for 25-year and 100-year storm events both pre- development and post-development. The modeling showed that, after development, "[a]djacent properties will not experience the higher flood level [that] they have in the past." (Tr. 156). The decrease is due to the holding back of water in detention ponds after development that will flow off at a slower rate than under pre-development conditions. The hydrographs show the difference in water flowing onto the site and Wetland A3 after the development under typical conditions in comparison to before development is slight. Water levels in Wetland A3 at times of typical storm events, after development, therefore will not be affected in any meaningful way by the SWM System so long as P11's water level is maintained at an appropriate elevation. In accordance with Section 4.2 of the District's Basis of Review, the SWM System is designed so that "[o]ff-site discharge is limited to amounts that will not cause adverse off- site impacts." Section 4.2 of the Basis of Review. See District Ex. 4, CHAPTER FOUR, pg. 1. The allowable discharges from the Project were established as a pre-development peak discharge rate from a 25-year, 24-hour storm. The modeling showed that the post-development discharge rates do not exceed the pre-development peak discharge rate. The ICPR modeling did not consider the outfall from Wetland A3 that occurs at the abandoned railroad right-of-way on the northern end of Wetland A3. As explained by Mr. Cyr, "Wetland A3 is . . . [a] boundary condition. That's where our model stops." (Tr. 198). The structure at the outfall at the northern end of Wetland A3 consists of three 42-inch pipes. Had the outfall been considered, Mr. Cyr testified, it would have had no effect on the results of the modeling. The understanding of the effect on the hydrology of the site provided by ICPR modeling conducted by Mr. Cyr, the drainage report and the other aspects of the information (such as the hydrographs and the design and information related to water quality) gathered and produced by Westfield support the District in its decision to issue the Permit. But there is a criticism of the modeling. It was presented by Dr. Blanco's witness: Mr. Vecchioli, an expert in hydrology as it relates to groundwater. The Site's Hydrogeology The area in which Ashley Glen, the Blanco Property and the Cypress-forested Wetland sit was described by John Vecchioli, a licensed geologist in Florida and an expert in hydrogeology, as: a low-lying plain of limited altitude . . . underlain by some 20 to 50 feet of . . . fine to very fine sand, sometimes silty, sometimes containing a clay layer or two. And then beneath that blanket of sand is . . . the upper Floridan [A]quifer, . . . a thick deposit of limestone, which also constitutes the primary source of drinking water for the area. (Tr. 93). Connected with the surface waters of the area so that the aquifer and the surface waters function as a single system, the Floridan Aquifer in Pasco County is known as a "leaky- confined aquifer." Id. Its "leaky-confined" nature means that: [The Floridan is] not firmly capped by thick layers of clay, but rather by sand deposits that although . . . more pervious than the layers of clay, still impede the exchange of water between the two systems. Id. The source of the water in the upper Florida Aquifer is mainly rainfall because the Aquifer "intercept[s] waters from the surface." (Vol. III, Tr. 95). Much of the water in the upper Floridan is recharged, "very young water . . . indicating that it has a good connection with the surface." Id. The interaction between the surface water and ground water was shown by a study that "showed . . . 93% of the water derived from . . . public supply wells [was] primarily from capture of water from the surface environment." (Vol. III, Tr. 94). Furthermore, "[t]here's some 133 million gallons per day pumped from a combination of wellfields in [the] area [of Ashley Glen and the Blanco Property]." Id. The documented adverse impacts of the pumping in the area has been limited to "drying up the surface, capturing water from streams, pulling down . . . wetlands." Id. The interaction between the surface waters and groundwater in and around Ashley Glen leads to Mr. Vecchioli's opinion that the effects of the SWM System on groundwater, and in particular the effect of Pond P11, "is a very important aspect . . . almost totally ignored [by Westfield and the District.]" Id. In other words, ICPR, because it does not account for effects on groundwater, is a flawed model for determining the impact on all water resources in the area. It did not consider "downward leakage as a means for water to escape from the pond [P11]." (Vol. III, p. 96). The omission is critical because the Floridan aquifer system has a potentiometric surface that's some 10 to 20 feet lower than the water table or surface environment most times during the year. The meaning of this was explained at hearing by Mr. Vecchioli: [T]here's a downward gradient where water will flow from the land surface in the vicinity of Pond 11 [Pll] down into the Floridan. When [Westfield's consultants] did the evaluation of the wetland-pond interaction, they ignored this. They essentially said that because we don't intend to penetrate the confining layer, which SWFWMD does not want done, that there won't be any leakage out of the pond vertically. This is not correct . . . . [I]n creating the pond . . . 25 feet or roughly half of the confining bed, or a greater amount, [will be removed], so this makes it much easier for water to move from the water table at land surface down into the Floridan . . . . Id. The failure to account for downward leakage or "vertical seepage" is significant. "[I]t . . . creates the uncertainty as to whether P11 is going to receive enough water to stay saturated to the top for much of the year." (Vol. III, Tr. 96- 97). If the water level in P11 does not stay at the control elevation, "there will be a downward gradient that prevails from the adjacent wetland [Wetland A3] into the pond and part of this will leak out into the Floridan aquifer, in addition to additional water lost by evaporation from the open surface of the pond. [This] . . . will create a deficiency in storage for the pond." (Vol. III, Tr. 97). Furthermore, with the removal of the sand during excavation and the replacement of it with water, "the material the water [that is contributing to seepage] has to move through is less, so you have much less energy lost to frictional forces." (Vol. III, Tr. 115). The result is that vertical seepage will be more likely to occur after the pond is excavated than before. In other words, it will be much easier for water to move from the surface into the Floridan. The seepage, moreover poses difficulties in maintaining elevation in P11. Evaporation from the pond will be greater than evaporation from the wetland. If water in the pond is not at the appropriate elevation, water will be drawn from Wetland A3. The wetland will be drier than under natural conditions. Mr. Vecchioli stopped short of predicting that downward leakage would damage the wetland; he stated only that damage would occur if P11 functions as he thought it "might." (Vol. III, Tr. 106). In essence, Mr. Vecchioli's opinion does not stand as a projection of certainty that the wetland will be damaged. Instead, it presents a factor that was not considered by Westfield in its analysis and by the District in its review. The District counters Mr. Vecchioli's opinion with the fact that the depth of the excavation is in compliance with the District's Basis of Review and that it will not remove what SWFWMD considers to be a "primary retarding material or section," that is, a layer of clay. But it will remove much of the sand. Sand, while it inhibits downward seepage from the surface into the aquifer, is nonetheless not impermeable; it is not an aquitard. Seepage, therefore, will occur despite compliance with the Basis of Review (as explained, below) with regard to depth of excavation and aquitards. Depths of Excavation and Aquitards Subsection 6.4.1.b of the Basis of Review addresses depths of excavation: 6.4.1 Dimensional Criteria (as measured at or from the control elevation). * * * b. Depth - The detention or retention area shall not be excavated to a depth that breaches an aquitard such that it would allow for lesser quality water to pass, either way, between the two systems. In those geographical areas of the District where there is not an aquitard present, the depth of the pond shall not be excavated to within two (2) feet of the underlying limestone which is part of a drinking water aquifer. District Ex. 4, CHAPTER SIX, Pg. 2 The term "aquitard" is not a term that appears in the "Explanation of Terms" section of the Basis of Review. See District Ex. 4, Section 1.7, CHAPTER ONE, pgs. 2-6. The District does not consider sand to be an aquitard. Clay, on the other hand, is an aquitard. As explained by Mr. Ritter at hearing, the term aquitard is "defined as a somewhat impermeable layer that if you were to cut through that, that would be considered a breach." (Vol. III, Tr. 128). If the District were to consider sand an aquitard, there is nowhere in the District that a pond could be excavated in compliance with subsection 6.4.1.b of the Basis of Review. The Ashley Glen proposal for the excavation of Pond P11 to a depth of 25 feet complies with the Basis of Review. The depth of excavation of the pond does not come within two feet of the underlying limestone. Nor does it breach a clay layer or any other aquitard. Compliance with the "depth of excavation" and "aquitard" provisions of the Basis of Review does not cure the problem with the placement of Pond P11: adjacent to Wetland A3. The problem was addressed (although not resolved) by a post- Draft Permit correction that showed more water reaching Wetland A3 by way of the SWM System than had been shown in the original modeling. Post-Draft Permit Correction The modeling described at hearing included a correction after the issuance of the Draft Permit. The correction was made because of "an additional off-site contributing area east of the project that was not considered in the original flood study prepared by the [applicant's] consultant . . . ." (Tr. 222). The model was updated to incorporate the additional contributions that had not been considered prior to the issuance of the Draft Permit. After the additional data was introduced, the modeling suggested changes that Westfield made to its proposal. On the north end of the Project, a conveyance channel had to be enlarged. Additional culverts were proposed beneath the proposed roadway to reduce flood impacts from the additional flows entering from the east that had been overlooked. Further evaluation by the District ensued in the wake of the additional modeling. Ultimately, in the process that preceded the final administrative hearing, the application was determined by the District to "still me[e]t the conditions for issuance and [staff, therefore] recommended approval." Id. In other words, this additional water would not cause too much water to flow into Wetland A3 and cause adverse impacts from flooding. The additional data demonstrates that there will be more water flowing through the SWM System and into Wetland A3 then originally projected but not too much so as to cause adverse flooding impacts. The additional water, however, does not cure the problem that Pond P11 poses for Wetland A3 as explained by Mr. Vecchioli due to the wetland's location, depth and open surface area. Location, Depth and Open Surface Area In the final analysis, while there may be nothing out of compliance technically with the depth of P11 and the size of its open surface area, when these factors are combined with the location of P11, adjacent to Wetland A3, there is a problem: the potential for adverse impact to Wetland A3 and the extended Cypress-forested Wetland of which it is a part. Seepage and evaporation will make it difficult to maintain the water levels in P11 necessary for the pond to discharge into the wetland. Furthermore, when the water table is down, whether due to drought, pumping activities in the region or for some other reason, and P11 is not at an appropriate elevation, it will draw water out of Wetland A3. Seepage and evaporation have the potential to exacerbate the drawdown. Seepage promoted by the presence of Pond P11 was not taken into account in the modeling done for the project. Without consideration of all the factors material to the site that should enter an appropriate calculation, there is not reasonable assurance that Wetland A3 and the Cypress-forested Wetland will not suffer adverse impacts from the SWM System. Monitoring Water Quantity Section 3.2.2.4(c) of the Basis of Review states: Whenever portions of a system could have the effect of altering water levels in wetlands or other surface waters, applicants shall be required to monitor the wetlands or other surface waters to demonstrate that such alteration has not resulted in adverse impacts, or to calibrate the system to prevent adverse impacts. Monitoring parameters, methods, schedules, and reporting requirements shall be specified in permit conditions. District Ex. 4, Chapter Three, P. 6. The District determined that the routing analysis and volume calculations with regard to the hydrology on-site and the hydrology of the wetlands provided by Westfield show that there will not be significant or frequent negative changes in wetland hydrology on site. The District concluded, therefore, there is no necessity to require monitoring of wetland water levels in the Permit. The District's determination, based as it is on the ICPR modeling provided by Westfield, does not withstand the criticism by Mr. Vecchioli. If the District, in the face of the evidence of record and Mr. Vecchioli's criticism, nonetheless decides that reasonable assurances have been made by Westfield, the District should require monitoring pursuant to the subsection 3.2.2.4(c) of the Basin of Review; without doubt, the excavation of Pond P11 adjacent to Wetland A3 has at least the potential to affect water levels in the wetland system. Water Quality The depth of P11 poses some dangers to water quality. Generally, the deeper a Florida lake, the more anoxic and "the more likely you have . . . nutrients such as phosphorus, binding up in the [waterbody] and then being released later" (vol. III, p. 64) to affect the waterbodies negatively. Wetlands surrounding P11, acting like "sponges" would provide treatment that removes nutrients and locks up chemicals to reduce their toxicity would improve water quality. But the District's rules do not require biological treatment for nutrients as part of the design of a surface water system. Given its nature as an attenuation pond, P11 will act like a secondary sediment sump. This aspect of P11 contributes no treatment credit to the application, as mentioned earlier, but any water entering Wetland A3 from P11 will have been treated by an SWM System so as to meet the District's requirements. Other measures will improve water quality on- site. One of such measures, for example, is that cattle on-site will be removed. Other measures related to water quality were examined by District staff. As he testified on behalf of the District, Mr. Sauskojus "checked to see whether or not . . . erosion control was located between any construction in the wetlands and/or buffers provided." (Tr. 288). He also checked to see that structures through which stormwater flowed into wetlands were equipped with skimmers. The inquiries led him to conclude as an expert in environmental resource permitting that water quality would not be adversely affected by the SWM System. Monitoring of water quality by the District may be done after the Permit has been finally issued and the SWM System is constructed. The District so provides in the Basis of Review. Section 5.13 of the District's Basis of Review states: Staff reports and permits for projects not requiring monitoring at the time of permit issuance will include a statement that water quality monitoring will be required in the future if necessary to ensure that state water quality standards are being met. This should not be construed as an indication that the District is contemplating the implementation of a program of intensive water quality monitoring by all permittees. District Ex. 4, Chapter Five, P. 6. Assurances Other than ICPR P11's Shelf Westfield proposes creation of a shelf along the western boundary of P11. It is approximately 150 feet wide with a slope of "a hundred to one . . . a flat area . . . right around the seasonal high elevation of [the] pond." (Tr. 158). Just as it does not claim treatment credit for P11, Westfield does not claim treatment credit for the shelf. There will not be any planting on the shelf; nor is it designed to serve as a littoral zone. A "shelf is . . . in some cases the final location for . . . the filtration [and] the protection for the wetland[;] . . . it acts as a wetland buffer for the mature forested wetland." (Vol. III, p. 59). But the shelf to be provided by Westfield is "just . . . a secondary shelf to help the interaction between the wetland and the pond." (Tr. 159). Without vegetation, the shelf provided will be of insignificant benefit. Dewatering During Construction To prevent dewatering of Wetland A3 during construction, a dewatering plan must be provided the District before excavation of P11 begins. The Permit contains a general condition that if the contractor "decides to use dewatering" (tr. 223) of a wetland, the District must be notified so that an assessment of adverse effects on the wetland can be made.6 Wetland Impacts: Avoidance, Minimization and Mitigation Direct impacts to wetlands include excavation or filling: events that entail physical construction in the wetland. The Project proposes direct wetland impacts to 1.61 acres of wetlands and 2.81 acres of surface waters or wet ditches. With regard to impacts, an applicant must first attempt to avoid them. If that fails, the applicant must minimize the impact. Finally, the applicant must propose mitigation for impacts. Direct Impacts to Wetlands In addition to the secondary impacts caused by the Project's upland activities to the many wetlands on-site that are buffered or that were not buffered and that have to be offset by mitigation, Wetland B12, a wetland little more than one-half acre in size, will receive both direct and secondary impacts. The direct impact is caused by the proposed road. The direct impact is unavoidable because of road alignment required by the Department of Transportation, "a human health and safety issue [that relates] to State Road 54." (Tr. 64). The direct impact to Wetland B12 takes up .15 acres, leaving .43 acres of the wetland without direct impact. (At the same time, Wetland B9 is avoided by the curve in the proposed road and the road is aligned to avoid direct impact to Wetlands B6 and D5.) Wetland B12 is exempt from fish and wildlife review because it "is not connected by a ditch or overland flow to a larger than half-acre wetland at seasonal high " (Tr. 283). The value of Wetland B12, as an isolated wetland, is not as high as the value of Wetland A3. It has also suffered de-watering and encroachment by exotic species. Wetland C12, just down the proposed road from Wetland B12, will incur direct impact to 0.05 acres. The remainder of the wetland on site, 1.80 acres will be preserved under a conservation easement. Wetland B4 is a small, herbaceous wetland. In the middle of what is now cow pasture slated for excavation if the Project is approved, Wetland B4 will suffer permanent destruction by the creation of Pond P11. The direct impact will cover 0.75 of an acre, the size of the wetland as it now exits. Wetland C4, 0.60 acres in size, will also be permanently destroyed by the establishment of several lots in the Northern Pod of development and excavation of P4, a wet detention pond. The justification offered by Westfield for the permanent destruction of these two relatively small isolated wetlands is economic. Saving them would cost $215,000. Mitigation of the Direct Impacts The project preserves wetlands on site with conservation easements. If the wetland is a good candidate for wetland stormwater treatment, the project attempts to augment its hydrology. The direct impacts of Westfield's planned activities are proposed to be mitigated by the construction of 2.89 acres of non-forested wetlands and by the preservation of 65.32 acres of wetlands on site. Section 3.3.2 in the Basis of Review provides: Subsections 3.3.2[.1] through 3.3.2.2 [of the Basis of Review] establish ratios for the acreage of mitigation required compared to the acreage which is adversely impacted by regulated activity. District Ex. 4, CHAPTER THREE, P. 21. When preservation of wetland and other surface waters is the vehicle of mitigation, it also provides: The ratio guideline for wetland and other surface water preservation will be 10:1 to 60:1 (acreage wetlands and other surface waters preserved to acreage impacted). District Ex. 4, CHAPTER THREE, P. 24. The ratio of wetlands and other surface waters proposed for preservation (65.32 acres) to wetlands proposed to be permanently destroyed (1.61 acres) by Westfield is more than 40 to 1, well within the guideline. The wetland area to be created is designated as Wetland B2. Adjacent to two wetland systems, Wetland A3 and Wetland C2, and lying between them, Wetland B2 will also serve as a wetland habitat wildlife corridor. The 2.89 acres of created non-forested wetlands that will constitute Wetland B2 offset 1.36 of non-forested impact, a ratio of 2.13 to 1. The ratio is within the guidelines for created wetlands in Section 3.3.2.1.1. of the Basis of Review. In the District's view, the applicant's wetland mitigation proposal provides the District with reasonable assurances that impacts to wetland functions will be offset. Put slightly differently by Mr.Sauskojus, in the view of District staff, "weighing the proposed direct impacts, the secondary impacts and the mitigation provided, . . . there will not be adverse impacts on site or offsite . . . ." (Tr. 293). Since downward and lateral seepage from Pond P11 was not taken into account, however, the mitigation plan offered by Westfield is not designed to offset any impacts from the seepage to Wetland A3 and the Cypress-forested Wetland. These impacts are secondary impacts. Secondary Impacts A secondary impact is an impact that follows a direct impact to a water resource. An example of a secondary impact is boat traffic increase because of the installation of a boat ramp or a marina that poses an increased threat of collision with manatees. The construction of the boat ramp or the marina would entail direct impacts to the water resource. The increased boat traffic would constitute impacts secondary to the construction of the ramp or marina. A way to minimize secondary impacts is through buffers. Just as the Cypress-forested Wetland should be buffered from development, so should the isolated wetlands on-site. Isolated wetlands are important for several reasons. They accept the brunt of the discharges from the developed uplands and so are responsible for filtering nutrients, pesticides and chemicals from stormwater and other run off. They also are spots where wildlife congregate. Birds, in particular, will be under siege from the cats that inevitably accompany development. Buffers, particularly vegetated buffers, assist in protection of wetlands whether contiguous or isolated. Section 3.3.7 of the Basis of Review provides: Secondary impacts to habitat functions of wetlands associated with upland activities will not be considered adverse if buffers, with a minimum width of 15' and an average width of 25' are provided abutting those wetlands that will remain under the permitted design, unless additional measures are needed for protection of wetlands used by listed species for nesting, denning, or critically important feeding habitat. District Ex. 4, CHAPTER THREE, Pg. 16. The upland activities of the Project have an average 25-foot buffer. For the bulk of the Project, the buffer is at least 15 feet, a minimum buffer that is normally required. Close to the headwaters of Wetland A3, however, the Southern Pod of development does not have a buffer that is equal to or more than 15 feet. In this area and other areas where there are less than 15 feet of buffer (such as around isolated Wetlands B8 and D3), the Project calls for a double silt fence, that is, a two- rowed fence to hold back silt. The silt fence will protect the wetland from damage during grading of the lots and construction of the residences. But it will not protect the wetland from secondary impacts caused by upland activities after the Project is developed. The buffers are made up of bahaia grass primarily. The import of the buffer's composition was explained at hearing by David Sauskojus, a District employee: If a buffer is made up of pasture grass, it is definitely much less effective relative to protecting habitat functions than . . . an undisturbed upland. . . . [I]n this case, . . . in the past before they made it pasture, [the undisturbed upland would have] consisted of palmettos, bryonia, bushes, [and] shrubs, that would have provided some kind of habitat value to the wetland itself. (Tr. 282). Despite the low quality of the composition of the buffers, the additional width of buffers in other areas that allow the average of the buffers to exceed 25 feet was reasonable assurance in the view of District personnel that the encroachment of development closer than 15 feet in certain areas would not have secondary habitat impacts to Wetland A3. Because of this "offset," the District did not request the applicant to mitigate for the encroachments into the minimum 15 feet of buffer normally required. Cumulative Impacts Section 3.2.8.1 of the Basis of Review provides: Cumulative impacts are considered unacceptable when the proposed system, considered in conjunction with the past, present, and future activities as described in 3.2.8 would then result in a violation of state water quality standards as set forth in subsection 3.1.1(c) or significant adverse impacts to functions of wetlands or other surface waters identified in subsection 3.2.2 within the same drainage basin when considering the basin as a whole. District Ex. 4, CHAPTER THREE, P. 19. The Project will not cause unacceptable cumulative impacts on the wetlands and other surface waters on site. Fish, Wildlife and Listed Species Under the Basin of Review, when a party applies for an ERP, "[g]enerally, wildlife surveys will not be required." District Ex. 4, Basin of Review, Section 3.2.2, CHAPTER THREE, page 4. The Basin of Review details when a wildlife survey is required: The need for a wildlife survey will depend upon the likelihood that the site is used by listed species, considering site characteristics and the range and habitat needs of such species, and whether the proposed system will impact that use such that criteria in subsection 3.2.2 through 3.2.2.3 and subsection 3.2.7 will not be met. Survey methodologies employed to inventory the site must provide reasonable assurance regarding the presence or absence of the subject listed species. Id. It is apparent from the record that District staff initially believed that a wildlife survey was needed. The file of record contains a document prepared by District staff entitled "Project Information Review List," (the "First Request for Additional Information" or "1st RAI"). Dated March 7, 2003, it refers to the Application's receipt one month earlier. Under the heading "SITE INFORMATION," the following appears: Has any current wildlife survey been performed on site? In particular, what recent observations have been made of wildlife usage within Wetlands B4, C4 and B12? The submitted wildlife survey not only is almost three years old, but it represents a preliminary effort. (emphasis supplied), Westfield Ex. 19, File of Record,(1st Volume), p. 104. The staff request for additional information continues with recommendations not only to cure the outdated nature of the survey but also for the methodology that should be used: Id. Staff would recommend, for the above three wetlands, that a survey be performed which is consistent with Florida Fish and Wildlife Conservation Commission's methodology, documented within; Standardized State Listed Animal Species Survey Procedures for FDOT Projects by Jim Beaver, revised in 1996, and Wildlife Methodology Guidelines by Mike Alan, 1988. Reference Rules 40D-4.101(1)(c) and (e) and 40D-4.301, F.A.C. and Section 3.2.2, Basis of Review (B.O.R.). The file of record reflects a response to the 1st RAI. With regard to the question as to whether a current wildlife survey has been performed, the criticism of the submitted survey and the recommended methodology to be used in a subsequent survey, Westfield's ERP consultant, King Engineering Associates, Inc., ("King") responds: Site conditions have not changed since King conducted the original preliminary listed species survey. During more recent site visits, King staff have not observed any additional listed species, or evidence of their breeding/nesting activity on the subject property. Onsite wetlands B4 and C4 are essentially shallow, wet depressional areas in the pasture. While these herbaceous wetlands could potentially provide occasional foraging habitat for wading birds, they do not represent suitable habitat for breeding/nesting of any listed species. Wetland B12, a forested wetland, likewise does not represent suitable habitat for breeding/nesting of listed species, and no listed species have been documented in this wetland. As a follow-up effort to King's preliminary listed species survey, and following recommendations made in that report, King has performed additional wildlife surveys. Specifically, a Southeastern Kestrel Survey and Gopher Tortoise Burrow Survey were conducted by King. The results of these follow-up surveys, which were included with Attachment 7 of the original submittal, revealed that neither of these two listed species is currently present on, or breeding/denning on, the subject property. Westfield Ex. 19, File of Record, (1st Volume), p. 123. On May 7, 2003, the District responded by letter to the additional information provided by King with a second Request for Additional Information (the "2nd RAI"). The letter states, "[y]our permit application still lacks some of the components necessary for us to complete our review; the enclosed checklist describes the missing information." District Ex. 19, File of Record, (1st Volume), p. 184). The checklist attached, under the heading "SITE INFORMATION" states: The response to Request for Additional Information (RAI) Comment No. 3, regarding wildlife surveys, does not give the District reasonable assurance that threatened or endangered species do not use the wetlands proposed to be impacted. Many changes have taken place in the vicinity of the project since King performed the preliminary survey three years ago. The construction of the Suncoast Parkway and several nearby residential developments have re-shaped habitat availability within this area. The District strongly recommends performing a wildlife survey to evaluate the usage by threatened or endangered species of Wetlands B4, C4 and B12. The survey should be performed using the previously noted Florida Fish and Wildlife Conservation Commission (FFWCC) methodology. Additionally, when/if the survey is performed, please provide details regarding the actual survey, including but not limited to, dates, times of day, location and methods used. Westfield Ex. 19, File of Record (1st Volume), p. 185. On June 20, 2003, King responded in writing to the 2nd RAI. With regard to the strong recommendation of a wildlife survey that uses the FFWCC methodology, King wrote: The applicant is confident based on the results of the existing Preliminary Listed Species survey and the extended amount of property contact time by field scientists and District staff in the intervening months when hydro-period, wetlands delineation, and permit application work were on-going, that no wetland dependent species are present. Westfield Ex. 19, File of Record, (1st Volume), p. 198. In addition to the time spent on the preliminary survey, the response lists 64 hours of time when the site was visited for purposes of "[w]etland delineation, wetland delineation & [h]ydro-periods," "h]ydro-periods," "[h]ydro-period [r]eview with SWFWMD," "[f]ollow-up Gopher Tortoise/Kestrel [s]urvey" and "[f]ield [v]isit with ACOE staff." Id. On July 18, 2003, a third RAI ("3rd RAI") was issued by staff. Satisfied with the June 20, 2003, response with regard to the earlier inquiries about a wildlife survey, the 3rd RAI makes no reference to the earlier requests with regard to site information or the need for wildlife survey. Dr. Baca, Dr. Blanco's wetlands ecologist, criticized the wetland information provided by Westfield along the same lines as did District staff in the documents in the file of record. For example, Dr. Baca testified with regard to endangered species that a survey should be conducted over several seasons. A great deal of time must be spent studying the particular habitat and looking for particular organisms. "It cannot be an aside to other work . . . with wetlands or soil studies . . . [i]t has to be a focus of [a wildlife survey]." (Vol. III, tr. 33). A survey for endangered or threatened species requires time and focus precisely because of the nature of listed species; in Dr. Baca's words, "they're not around very much and sometimes they're not around very long." (Vol. III, tr. 32). Time of day that a survey is conducted, moreover, has an impact on the likelihood that wildlife will be found on site. As Dr. Baca testified, Most of the time, you'll find more wildlife on-site around the hours of dusk and dawn . . . Other times, especially during cold weather, wildlife will come out during the hottest part of the day, which is around noon . . . [a]ll of these add to the amount of time that would be required to do a proper study. (Vol. III, Tr. 33). There is no evidence of record as to time of day of the visits used by Westfield for credit toward wildlife observation. Finally, it is apparent that the on-site visits following the preliminary species survey three years prior to the submission of the application did not employ the methodology recommended by the District: the FWWCC methodology. Perhaps an equivalent methodology could be employed, but there is no evidence of an attempt to conduct a survey with an acceptable methodology, either that of FWWCC or an equivalent. The District's acceptance of the Kestrel Survey may have been appropriate.7 But the hours spent visiting the site for wetland delineation and purposes other than to survey wildlife were not shown to have employed the FWWCC methodology or its equivalent and do not supplant the need for a wildlife survey that employs an appropriate methodology. The Mitigation Plan When the impacts of a project that requires an ERP permit are such that an applicant is unable to meet the criteria for approval (the "public interest test"), the applicant may propose or accept measures that mitigate the adverse impacts of the regulated activity so that the Project in its entirety can be demonstrated to be "not contrary to the public interest." In other words, "[t]he mitigation must offset the adverse effects caused by the regulated activity." § 373.414(1)(b), Fla. Stat. It is "the responsibility of the applicant to choose the form of mitigation." Id. As explained by the testimony, all of the mitigation proposed by Westfield is on-site.8 The Respondents' Joint Proposed Recommended Order addresses mitigation for the adverse impacts caused by the Project. The proposed findings that relate to mitigation are summed up in paragraph 16 of the proposed order: 16. The mitigation for the project is appropriate and adequately compens[]ates for the unavoidable direct and secondary wetland impacts from the Project. Respondents' Joint Proposed Recommended Order, p. 6. In support of this finding, the proposed order cites to the File of Record, Westfield Ex. 19, testimony from Mr. Courtney at Tr. 66-76 and 120-121 and testimony from Mr. Sauskojus at Tr. 284-286. Mr. Sauskojus' testimony explains how the mitigation plan adequately mitigates for the direct impacts to wetlands on site. But that explanation does not demonstrate mitigation for all of the potential impacts. No effort was offered for how the plan was designed to mitigate for the impact of draw-down from Wetland A3 caused by low elevation of Pond P11 due to seepage, for example, because seepage was not accounted for in the ICPR modeling. Mr. Courtney's testimony is no different with regard to the same critical omission. Westfield, quite simply, did not take into account, as Mr. Vecchioli testified, the effect of seepage in the information it provided the District. Nor was the mitigation plan designed to mitigate for secondary impacts that might have been indicated by a wildlife survey since an appropriate wildlife survey was not conducted. At bottom, Westfield did not provide reasonable assurances as required by the statutes and rules; it omitted an adequate wildlife survey from the submission of information to the District and it failed to account for seepage from Pond P11 and its effect on Wetland A3 and the Cypress-forested Wetland. Its mitigation plan does not make up for Westfield's failure to demonstrate that the Project is otherwise "not contrary to the public interest."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Individual Environmental Resource Permit sought by Entryway and Westfield be DENIED. DONE AND ENTERED this 17th day of December, 2004, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 17th day of December, 2004.
