The Issue The issue for determination is whether Petitioner's revocation of Respondent's modified permit, authorizing a cross- fence on Petitioner's fee owned right-of-way, should be approved.
Findings Of Fact The South Florida Water Management District (District) is a public corporation in the State of Florida, existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multi-purpose water management district. The District's principal office is West Palm Beach, Florida. In executing its multi-purpose, the District, as local sponsor for the US Army Corps of Engineers' Central and Southern Florida Flood Control Project, acquired canal rights-of-way. The District's rights-of-way were acquired to enable the Corps of Engineers to construct the flood control project and to maintain the system after its construction. The District operates a proprietary-based right-of-way program to manage the various property interests of the canal rights-of-way. The purpose of the District's right-of-way program is, to the extent possible, to allow uses of the rights- of-way that do not conflict with the flood control project. The rights-of way are used by both public and private concerns, including adjacent property owners, governmental entities, and utility companies. Jesus G. Quevedo is a private individual. His address is 2615 North Federal Highway, Lake Worth, Florida. The property at this address was vacant when Mr. Quevedo purchased it, and he has owned the property for approximately ten (10) years. The District has fee simple title to a strip of land on the south side of the District's C-51 Canal, immediately west of the Federal Highway/Olive Avenue bridge (C-51 Right-of-Way). Mr. Quevedo's property is located at the side of and adjacent to the C-51 Right-of-Way. The C-51 Right-of-Way is also located within the boundaries of Spillway Park as established in the agreement between the District and the City of Lake Worth. Generally described, Spillway Park includes the District's fee simple owned right-of-way on the south side of the District's C-51 Canal, beginning at the west side of the Federal Highway/Olive Avenue bridge and continuing to the east side of the Dixie Highway bridge. Mr. Quevedo has no real property interest in the C-51 Right-of-Way. Prior to purchasing his property, Mr. Quevedo was aware that the District owned the C-51 Right-of-Way. Historically, portions of Spillway Park and the C-51 Right-of-Way, in particular, have been a unique and popular location for excellent snook fishing by the public. These areas continue to be considered as such. On February 11, 1993, Mr. Quevedo was issued SFWMD Permit No. 9801 (Permit), a right-of-way occupancy permit, by the District’s Governing Board. The Permit authorized him to make use of the District’s lands and works as follows: 20’ X 50’ BOAT DOCK WITH WALKWAY, BURIED WATER AND ELECTRICAL SERVICE, POP-UP SPRINKLERS, AND SODDING WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED IMMEDIATELY WEST OF THE OLIVE AVENUE/FEDERAL HIGHWAY BRIDGE. During the permit application process, but prior to the issuance of the Permit, Mr. Quevedo had discussed with the District's staff the erection of a cross-fence based on allegations of improper or criminal activities by members of the public. Subsequently, in November 1995, Mr. Quevedo again discussed with the District's staff erection of a cross-fence based on the same allegations but he also included a new allegation of public safety as to the C-51 seawall. Based on the concern for public safety, the District's staff recommended that Mr. Quevedo be granted a modification to the Permit for a cross-fence. On November 14, 1996, the District's Governing Board approved, as part of its consent agenda, and issued SFWMD Permit MOD No. 9801 (MOD Permit)3 authorizing the following: CHAIN LINK CROSS FENCE WITH 16’ VEHICULAR GATE ALONG THE WEST PROPERTY LINE WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED AT 2615 NORTH FEDERAL HIGHWAY. The MOD Permit, as did the Permit, provides in pertinent part on its face the following: The permittee, by acceptance of this permit, hereby agrees that he shall promptly comply with all orders of the District and shall alter, repair or remove his use solely at his expense in a timely fashion. . . . This permit is issued by the District as a license to use or occupy District works or lands. . . By acceptance of this permit, the permittee expressly acknowledges that the permittee bears all risk of loss as a result of revocation of this permit. The MOD Permit, as did the Permit, contained standard limiting conditions, as provided in Rule 40E-6.381, Florida Administrative Code, and special conditions. The limiting conditions provide in pertinent part as follows: Permittee agrees to abide by all of the terms and conditions of this permit, including any representations made on the permit application and related documents. . . . This permit does not create any vested rights, and except for governmental entities and public or private utilities, is revocable at will upon reasonable prior written notice. Permittee bears all risk of loss as to monies expended in furtherance of the permitted use. Upon revocation, the permittee shall promptly modify, relocate or remove the permitted use. In the event of failure to so comply within the specified time, the District may remove the permitted use and permittee shall be responsible for all removal costs. This permit does not convey any property rights nor any rights or privileges other than those specified herein. . . . Having been granted the MOD Permit, Mr. Quevedo erected the cross-fence within and onto the C-51 Right-of-Way. The C-51 Right-of-Way is located adjacent to Mr. Quevedo’s property, as indicated earlier, and continues westerly to the permitted cross-fence. The C-51 Right-of-Way is enclosed by the cross-fence, preventing access by the public, and is located easterly of the cross-fence. As the C-51 Right-of-Way is located within the boundaries of the Spillway Park, the cross- fence is also located within the boundaries of the Spillway Park. During the time that Mr. Quevedo has owned his home, including prior to and after erection of the cross-fence, he, his family members and/or guests have frequently fished from the C-51 seawall and used the C-51 Right-of-Way enclosed by the cross- fence. Prior to and after the erection of the cross-fence, Mr. Quevedo and his family members have selectively controlled access by the public to the C-51 Right-of-Way at the C-51 seawall. Prior to the erection of the cross-fence, Mr. Quevedo chased members of the public off the C-51 Right-of-Way. Mr. Quevedo and members of his family also called law enforcement officers to remove members of the public who were located on the C-51 Right-of-Way, even if the members of the public were fishing from the C-51 seawall. After the erection of the cross-fence, Mr. Quevedo and his family members continued to engage in this conduct of selective access. Subsequent to the erection of the cross-fence, Mr. Quevedo had a member of the public arrested for trespassing. The person allegedly jumped over or went around the cross-fence to fish from the C-51 seawall in the C-51 Right-of-Way. With the existence of the cross-fence, Mr. Quevedo has prevented the general public from using the C-51 Right-of-Way, including the C-51 seawall. As a result, he has acquired the exclusive, private use of the C-51 Right-of-Way at the C-51 seawall, which is publicly owned land, and has, almost doubled the size of his adjacent property without the obligations and expense of acquisition, assuming he could acquire the property through acquisition. The District's policy is that public land should be open to the public. Contrary to this policy, Mr. Quevedo's cross-fence precludes access to the District's right-of-way (C-51 Right-of-Way), including the seawall, for passive recreational use. Similar cross-fencing, although not within the boundaries of Spillway Park, have been erected behind residences on the northeast, northwest, and southeast sides of Federal Highway, along the District’s C-51 Canal bank. The cross-fencing prevents public use of the District’s C-51 Canal bank at these locations. The City of Lake Worth made improvements within the boundaries of Spillway Park; however, it made no improvements, and does not intend to make any improvements in the future, at the C-51 Right-of-Way where Mr. Quevedo’s cross-fence is located or at the other private lots west of Mr. Quevedo's property. All of the improvements made at Mr. Quevedo’s cross-fence at the C-51 Right-of-Way have been made by him even though the C-51 Right-of- Way is located within Spillway Park. The original public safety rationale for authorizing Mr. Quevedo to erect the cross-fence blocking public access was revisited by the District. Additional investigation by safety experts (Risk Management staff) revealed that no unreasonable danger existed by allowing public access to the C-51 seawall at the C-51 Right-of-Way. In the absence of the public safety basis for closure of the C-51 Right-of-Way, such closure was contrary to District policy. As a consequence, the District’s staff recommended to the District’s Governing Board that the MOD Permit, authorizing Mr. Quevedo’s cross-fence, be revoked. After conducting two public meetings and receiving comments from Mr. Quevedo, members of the public, and the District’s staff as to the policy issue of pubic access to the C- 51 Right-of-Way, the District’s Governing Board determined that the C-51 Right-of-Way should be open to the public. Consequently, the Governing Board decided to revoke Mr. Quevedo's MOD Permit. Allegations of criminal activity within the general boundaries of Spillway Park and, specifically, in the C-51 Right- of-Way at the cross-fence area, were made by Mr. Quevedo as a basis to not revoke the MOD Permit and allow the cross-fence to remain. Such allegations have no bearing on the revocation of the MOD Permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order revoking SFWMD Permit No. MOD 981 issued to Jesus G. Quevedo. DONE AND ENTERED this 8th day of March, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 8th day of March, 1999.
The Issue The primary issue in this case is whether the St. Johns River Water Management District (District, or SJRWMD) should issue consumptive use permit (CUP) 95581 to Seminole County (Seminole) authorizing the withdrawal and use of 2,007.5 million gallons a year (mgy) or 5.5 million gallons a day (mgd) of surface water from the St. Johns River for public supply and reclaimed water supply augmentation.
Findings Of Fact Parties Seminole County (Seminole) is north of Orlando, Florida, and contiguous with the St. Johns River. It is located entirely within the District, and the Central Florida Coordination Area (“CFCA”). Seminole owns and operates water, wastewater, and reclaimed water utilities. These include a wastewater treatment facility at Yankee Lake near the St. Johns River just downstream from Lake Monroe, where Seminole proposes to construct surface water withdrawal and related facilities. The District is the regulatory agency charged with issuing permits for the consumptive use of water within a sixteen county area located in East-Central Florida. The City of Jacksonville (Jacksonville) is a Florida municipality located about 140 miles downstream of the proposed Yankee Lake facility. Jacksonville’s standing is based on the filing of a verified pleading pursuant to Section 403.412(5), Florida Statutes.2 St. Johns County (St. Johns) is a Florida political subdivision located approximately 100 miles downstream of the proposed Yankee Lake facility. St. Johns County’s standing also is based on the filing of a verified pleading pursuant to Section 403.412(5), Florida Statutes. St. Johns Riverkeeper, Inc. (Riverkeeper), is a Florida not-for-profit corporation. It alleges Seminole’s proposed withdrawal of water will adversely affect the use and enjoyment of the St. Johns River by a substantial number of its members. At the end of its evidentiary presentation at the final hearing, Riverkeeper requested leave to amend its petition to also allege standing under Section 403.412(6), Florida Statutes. Seminole's Water Utility Systems Seminole serves customers in its Northwest, Northeast, Southwest, and Southeast Potable Water Service Areas, and holds separate groundwater CUPs for each service area. The existing CUPs authorize a total allocation of 21.7 mgd. Seminole has four main wastewater water service areas roughly contiguous with its water service areas. Seminole treats wastewater from the Southeast Service Area at the Iron Bridge Regional Water Reclamation Facility,3 and treats wastewater from the Northwest and Northeast Service Areas at its Yankee Lake Wastewater Treatment Plant (WWTP) and Greenwood Lakes WWTP. Seminole has two reclaimed water service areas, the Northwest-Northeast Service Area, which utilizes treated wastewater supplied by the Yankee Lake and Greenwood Lakes WWTPs, and the Southeast Service Area, which utilizes treated wastewater from the Iron Bridge WWTP. Seminole plans to expand reclaimed water use in the Northwest-Northeast Service Area by installing an $80 million, 5-phase residential reclaimed retrofit program. Seminole has developed an Integrated Water Supply Plan (Seminole's Plan) to address existing and future potable and reclaimed water needs in compliance with the CFCA rules, which limit groundwater withdrawals to the quantity required to meet each user’s 2013 demand and encourage development of AWS sources to meet excess demands.4 Seminole's Plan includes traditional and AWS sources and a conservation program that has been approved by the District. Seminole's traditional water source is groundwater, and Seminole has a pending application to consolidate its existing groundwater CUPs (Consolidated Groundwater CUP). With current allocations of 21.7 mgd expired or soon to expire, the Consolidated Groundwater CUP requests an allocation of 25.6 mgd to meet 2013 demands. The current plan is for surface water withdrawals from St. Johns River at Yankee Lake be Seminole's non-traditional water source. Yankee Lake Project CUP On February 12, 2008, the District issued its Technical Staff Report (“TSR”) for CUP 95581. The TSR recommended a 20-year CUP with a surface water allocation of 0.70 mgd starting in 2009, increasing to 5.5 mgd in 2025-2028. Between 2009 and 2013, the surface water allocation identified in the TSR would be used for reclaimed water augmentation. Starting in 2014, the TSR recommends an allocation of 5.35 mgd, which coincides with the completion of Seminole’s surface water treatment facility and the use of surface water as a potable water source. Condition 6 of the TSR limits the maximum daily withdrawal to 11.59 mgd. The intake structure for the Yankee Lake surface water facility will be located on a manmade canal connected to the St. Johns River, in or just outside the Wekiva River Aquatic Preserve and in Seminole's Yankee Lake Black Bear Wilderness Area. The capacity of the intake structure is 10 mgd, and it has been sized for expansion to 50 mgd to meet potential future demands over the useful life of the facility. The intake structure is designed with an intake velocity much less than 0.5 feet per second, which is the industry standard. The intake structure includes a sheet pile wall, an 8-inch bar screen manatee barrier at the mouth of the canal, a second screen which removes aquatic debris and serves as a second barrier to aquatic life, and a 4-millimeter intake pump screen. Raw water pipelines from the intake structure will run through previously disturbed wetlands within the Wekiva River Aquatic Preserve and the Seminole Black Bear Wilderness Area to new treatment facilities, all of which will be located on land owned by Seminole. The pipelines consist of two 42-inch lines with a total capacity of 50 mgd, which is intended to meet possible future demands during the 50-year useful life of the facilities. It is common to design utility infrastructure to accept larger quantities of water than immediately needed to accommodate possible future expansion. Seminole Water Demand and Need The reasonableness of Seminole's proposed CUP depends in large part on potable water and reclaimed water demand. Potable Water In 2005, Seminole provided water service to a residential population of 101,585. For the most recent five- year period, from 2003-2007, Seminole’s average residential per capita potable water use rate was 153.7 gallons per capita per day (gpcd). The historic per capita use rates in Seminole’s four service areas are below 150 gpcd, with the exception of the Northwest Service Area. The served population in the Northwest Service Area increased from 12,655 in 2001 to 20,745 in 2005, and per capita usage declined from 285 gpcd in 2001 to 213.5 gpcd in 2005. The higher per capita rate in the Northwest Service area is attributable to larger residential lots and lawns and more irrigation than in the other service areas. Additionally, the residents are more affluent and are not as responsive to Seminole’s water conservation rate structure. Seminole is implementing an $80 million reclaimed water retrofit program in order to reduce per capita potable water use in the Northwest Service Area. In order to project future water demands for the life of the proposed CUP, Seminole’s consultant, Dr. Terrence McCue, used the population projections published by the University of Florida Bureau of Economic and Business Research (“BEBR”).5 He used the BEBR 2008 medium population projections, which were the most recent projections available at the time of hearing. Since BEBR data are published on a county-wide basis, Dr. McCue disaggregated the data to Seminole’s service areas by using traffic analysis zones and water utility billing data. This is a recognized methodology used to calculate service area population for the purpose of determining water demand. Using this methodology, Dr. McCue estimated Seminole’s service area population to be 110,860 in 2008 and projected that it would increase to 126,531 in 2013 and to 161,971 in 2027. The District asked its consultant, Richard Doty, to perform an independent water demand projection as a check on Dr. McCue’s work product. Mr. Doty also relied on BEBR projections, but disaggregated the county-wide population projections differently, using a sophisticated GIS model to calculate build-out densities. Mr. Doty estimated Seminole’s service area population to be 109,202 in 2007 and projected that it would increase to 126,075 in 2013 and to 155,368 in 2027. Although Mr. Doty’s population projections were somewhat lower than Dr. McCue's, they were close enough to essentially corroborate the validity of Dr. McCue's projections. Mr. Doty testified that, while he prefers his projection, Dr. McCue’s population projections are plausible. Jacksonville's expert witness, Nolton Johnson, who did not himself project service area population, could not say that Mr. Doty’s population projections are superior because Dr. McCue used actual water billing data that was more specific to Seminole’s service area. For these reasons, it is reasonable to base projected water demand on either Dr. McCue's or Mr. Doty's population projections. To project service area demand, projected population is multiplied by a use rate. Here, Mr. Doty used the simple method specified in A.H. Section 12.2.2. He basically averaged the historical gross per capita daily (gpcd) water use in each service area for the most recent five-year period (2003-2007). Using the average use rate for those years, he calculated a total potable water demand (for all sources and all kinds of uses) of 24.87 mgd for 2013, 30.67 mgd for 2027, and 30.76 mgd for 2028. In contrast, Dr. McCue averaged the historical per capita residential use rate for 2001 through 2005, instead of 2003 through 2007. Then, he made several adjustments not used by Mr. Doty and not included in A.H. Section 12.2.2. Some of these adjustments had the effect of increasing demand while others decreased demand. First, Dr. McCue's demand estimates included an 8% "unaccounted-for flow factor." There was evidence that this is an accepted industry standard and consistent with other utilities in Central Florida. However, it seems high for Seminole, which may actually over-account for flow. (Seminole is currently attempting to ascertain the accuracy of its flow meters.) Mr. Doty did not incorporate an "unaccounted-for flow factor" in his demand projections because any discrepancy, whether Seminole's flow meters are over-accounting or under- accounting for actual flow, should already be incorporated into the historical use rate Mr. Doty calculated. Second, Dr. McCue multiplied the historical average by a 6% "drought correction factor." Dr. McCue's rationale for the drought correction factor was that it accounted for the increased demand that would occur during drought years (although the historical average already accounted for use rate changes due to the fluctuations in rainfall that occurred during 2001- 2005). Dr. McCue also made adjustments to the historical use rate to reduce projected potable water demand as a result of Seminole's Water Conservation Plan, which meets all District requirements and CUP permitting criteria and has been approved by the District. Seminole's Water Conservation Plan includes Seminole’s ongoing residential irrigation audit program, which from 2007 through 2013 is projected to conserve 0.082 mgd per year, with a total savings of 0.622 mgd. Seminole has had a water conservation rate structure in place since 1985, which discourages high water use by increasing customer billing rates as usage increases. Seminole also has implemented a block billing structure for its reclaimed water customers to conserve that water. Seminole's Water Conservation Plan also includes an augmentation minimization plan, conservation gardens, and a public education program. The total cost of implementing Seminole’s conservation plan will exceed $125 million. The plan is focused on the Northwest Service Area, where per capita water use has declined 25% from 2001 to 2007. If Seminole's objectives are achieved, projected water use within the Northwest Service Area will decline an additional 25%, for a 50% reduction in potable water use within the Northwest Service Area from 2001-2028. Dr. McCue applied a 9% reduction in potable water demand due to implementation of the reclaimed water retrofit program and a 4% reduction to account for other planned conservation measures. Based on Dr. McCue’s projections, Seminole’s residential per capita use rate will fall below 150 gpcd in 2012, and will continue to decline to 134.5 gpcd in 2027 as a result of the proposed conservation, with corresponding reductions in potable water demand. Petitioners contend that Dr. McCue's conservation adjustments were "negotiated" between Seminole and the District, and are too low. The "negotiation" process itself does not negate the reasonableness of the resulting agreed conservation adjustments since it is impossible to predict the results of Seminole's Water Conservation Plan with certainty. The conservation adjustments used by Dr. McCue were reasonable. Riverkeeper expert witness, Dr. John Woolschlager, testified that Seminole could achieve greater reductions (15%) in water use through conservation. He based his opinion on reductions achieved by other utilities, including the City of Tampa and Miami-Dade County. Dr. Woolschlager relied on an EPA report on the City of Tampa, which indicated that Tampa experienced a 26% decline in per capita use from 1989 to 2001. However, he was not aware of how lot sizes, land use patterns, persons per household, or other demographic information for Tampa compare to Seminole, and he did not have enough data to say that Seminole could achieve similar savings from 2008 to 2028. Dr. Woolschlager also did not know whether Seminole had already implemented any of the conservation measures utilized by Tampa from 1989 to 2001. Dr. Woolschlager also relied on a study involving Miami-Dade County. However, he admitted that Miami-Dade County is not similar to Seminole demographically. Dr. Woolschlager also was not aware of Miami-Dade’s total water use during the study period, but was only aware that Miami-Dade had reduced its water consumption by 19.8 mgd. Without knowing Miami-Dade’s total use, it was impossible to calculate the percentage savings that was achieved by Miami-Dade in order to compare it to Seminole. Jacksonville expert witness, Nolton Johnson, opined that greater conservation savings could be achieved through the mandatory implementation of the Florida Water Star Program, a voluntary certification process for builders. While promoted by the District, the Florida Water Star Program is not part of the District’s conservation requirements. It is not appropriate to include a CUP requirement that Seminole make the program mandatory. It is not reasonable from an engineering perspective, or appropriate, to assume savings from 100% compliance with the Florida Water Star Program by new development in Seminole, as Mr. Johnson did for his opinion. In addition, Mr. Johnson based his assumptions regarding the amount of water savings achievable through mandatory implementation of the Florida Water Star Program on a District brochure. However, the brochure assumed an extremely high starting per capita water rate prior to implementation of the program--much higher than Seminole’s existing per capita water use rate, even in the Northwest Service Area. For that reason, Mr. Johnson's assumptions were not applicable to Seminole. In part as a result of his conservation adjustments, Dr. McCue assumed that Seminole would be allocated only 23.71 mgd of groundwater from 2013 on, instead of the 25.6 mgd of groundwater requested in the pending Consolidated Groundwater CUP. While on the one hand criticizing Dr. McCue's assumed conservation savings for being too low, Riverkeeper in particular also criticized Dr. McCue for applying any conservation adjustments to reduce the assumed groundwater allocation in the pending Consolidated Groundwater CUP. Riverkeeper argued essentially: that Seminole was entitled to the groundwater necessary to supply its 2013 projected demand, without any conservation reduction, as requested in the pending Consolidated Groundwater CUP; that Seminole essentially is being unfair to itself by not asserting in this case its entitlement to the full 25.6 mgd of groundwater requested for 2013 in the pending Consolidated Groundwater CUP (which would have the effect of reducing or eliminating its need for any water from the river); and that allowing Seminole to decline to take the maximum groundwater would somehow discourage other applicants from implementing conservation programs. These criticisms are rejected. First, there is no guarantee that the Consolidated Groundwater CUP will authorize the full requested amount, as the District has expressed concern about potential environmental impacts to wetlands and lake MFLs. Second, there is no guarantee that the District will approve the Consolidated Groundwater CUP in time to meet Seminole’s needs. At the time of the final hearing, it was projected that Seminole could begin to face a water deficit in some of its service areas as early as the end of 2008 if the Consolidated Groundwater CUP was not approved soon. Finally, there is no requirement that Seminole use groundwater up to the 2013 demand limit in the CFCA rules. If Seminole is allocated surface water from the St. Johns River in this case because it applied conservation adjustments to its demand calculations, the appropriate amount of groundwater Seminole needs for reasonable-beneficial use will be determined in the pending Consolidated Groundwater CUP application, which also will determine how much "redundancy" is appropriate, if any. Condition 4 of the TSR specifically provides that the combined allocations of surface water under CUP 95581 and groundwater resulting from pending Consolidated Groundwater CUP application may not exceed the total projected demand for all four service areas in any year. With his adjustments, Dr. McCue projected a total potable water demand (for all sources and all kinds of uses) of 23.19 mgd for 2013 and 28.1 mgd for 2027. Based on those assumptions, Dr. McCue projected a requirement for 0.46 mgd of AWS in 2012, none in 2013 and 2014, 0.18 mgd in 2015, with increasing AWS requirements each succeeding year, up to 4.39 mgd in 2027. Seminole also is requesting a maximum day allocation of 11.59 million gallons. Of this amount, 7.59 million gallons are attributable to potable water needs. This maximum day demand for potable water supply use was calculated using a peaking factor of 1.7 based on existing potable water use rates, which is consistent with the District’s applicable rules. See A.H. § 12.2.4. (ii) Reclaimed Water Seminole has undertaken the expansion of its reclaimed water system to existing potable water customers in the Northwest-Northeast Service Area, which receives reclaimed water from the Yankee Lake and the Greenwood Lakes WWTPs. In 2005, about 4 mgd of reclaimed water was produced at these facilities; by 2025, 8.16 mgd will be available for reclaimed use. Upon implementation of the reclaimed water retrofit program, roughly 75% of the reclaimed water produced by these facilities will be reused to meet annual average demand, and about 100% will be used to meet maximum day demands. This complies with the requirement that CUP applicants meet non-potable water demands through the use of lower quality sources, such as reclaimed water, when feasible. See A.H. § 10.3(g). The reclaimed retrofit program is being implemented in 5 phases. Phase I has been completed and was put on-line in 2008. Phase II will be completed in 2010. Phases III, IV, and V are scheduled to be completed in 2015. The reclaimed retrofit program cannot be accelerated, because Seminole must produce sufficient wastewater to meet reclaimed water demands in those areas. Otherwise, greater reclaimed water augmentation than requested in the pending CUP application would be required to meet reclaimed water demand. There was no genuine dispute as to Seminole's need for an mgd on an annual average basis and a four-million gallon maximum daily allocation to augment its reclaimed water system as a result of the reclaimed retrofit program. The relevant issue raised by the objectors is whether there are lower acceptable quality sources of water than the St. Johns River available to augment Seminole's reclaimed water system. See A.H. § 10.3(g). Seminole’s Consideration of AWS Options Before filing the application for the CUP at issue in this case, Seminole evaluated a number of AWS options, including brackish groundwater, seawater desalination, and the St. Johns River. Brackish Groundwater Seminole considered and actually identified brackish groundwater withdrawn from Lower Floridan Aquifer wells as a potential AWS source and applied for a CUP in 2004 to use brackish groundwater wells near its Greenwood Lakes WWTP as a source of water to augment its reclaimed water system. Preliminary modeling of withdrawals of 6.25 mgd from wells near the Greenwood Lakes WWTP and 1 mgd from wells near the Yankee Lake WWTP indicated that there would be adverse impacts to wetlands and other surface waters, including the minimum level established at Lake Sylvan. The Greenwood Lakes WWTP is approximately five miles from Lake Sylvan. The Yankee Lakes WWTP is approximately a mile from Lake Sylvan. The modeled impacts on Lake Sylvan probably were significantly larger than the impacts of smaller brackish groundwater withdrawals, especially if withdrawn only from Greenwood Lakes wells. No pump tests were conducted. Even with limited knowledge, Seminole and the District concluded that the Lower Floridan Aquifer would not be a long- term, stable water supply source in Seminole and that use of brackish groundwater would require Seminole to design and construct a water treatment facility with a short useful life, making brackish groundwater an infeasible AWS option for Seminole. This conclusion was reached because there is little freshwater recharge to the Lower Floridan Aquifer in the area, and withdrawn brackish groundwater likely would be replenished by saltier water from the deeper aquifer, resulting in a degraded water supply. No expert testimony refuted that evaluation. Seawater Desalination The most probable location of a desalination facility to supply Seminole would be near the Atlantic Ocean in Volusia County. This option would require the construction of an extensive pipeline to transport desalinated water to Seminole, and reverse osmosis concentrate would have to be disposed of through an ocean outfall or deep injection well. Seawater desalination would require a complicated, expensive, and energy-intensive treatment process. The capital cost to supply 4.5 mgd to Seminole would be about $183 million, and operation costs would be twice those of the proposed Yankee Lake project, making the desalination option economically infeasible. RIBs Petitioners contended that Seminole should obtain supplemental water for its reclaimed system from its rapid infiltration basins (“RIBs”). RIBs are basins with highly- permeable soil that allow water to percolate into the surficial aquifer for disposal and beneficial recharge. Seminole uses RIBs to dispose of excess reclaimed water during wet weather conditions, when it is not needed to meet reclaimed water demands. When needed to meet reclaimed water demands, reclaimed water will be supplied to reclaimed water customers and will not be discharged to RIBs. Thus, reclaimed water will not be available from the RIBs during those times when augmentation water is needed. For RIBs to be used for reclaimed water augmentation, they would have to be combined with a large reservoir. The evidence was that a 400-acre, 450 million gallon reservoir would have to be constructed to store enough reclaimed water to meet Seminole’s augmentation needs. In addition, a treatment facility would be required to treat the reclaimed water stored in a reservoir prior to distribution to customers. Construction of the reservoir and treatment system would cost $110 million, which is far more than the $41 million required for construction of the reclaimed water augmentation component of the Yankee Lake Project. It would not be economically or technically feasible for Seminole to implement this reclaimed water storage and re- treatment system. Stormwater Petitioners also contend that Seminole could use stormwater to meet its reclaimed water augmentation needs, something that is almost unheard of in Florida. For this idea to work, stormwater would have to be captured and stored in order. This would require construction of a stormwater collection and transmission system extending throughout the Northwest Service Area. It also would require construction of a 450-million gallon reservoir and a treatment facility. The capital cost of a stormwater augmentation option would be $171 million, making it technically and economically infeasible. Tri-Party Agreement In December 1996, Seminole and the Cities of Sanford and Lake Mary entered into a contract known as the Tri-Party Agreement for the potential development of a regional reuse system. On its face, the agreement allows Seminole to obtain up to 2.75 mgd of reclaimed water from Sanford. However, in reality, the Tri-Party Agreement is not a feasible source of reclaimed water. First, the Tri-Party Agreement does not guarantee a specific quantity of reclaimed water that will always be available to Seminole. Second, Sanford's effluent is not required to meet the more stringent water quality standards, in particular for nitrogen, established for the Wekiva River Protection Zone, which Seminole’s Northwest-Northeast Service Area is in. Sanford only has to meet a 12 mg/l standard for nitrogen, while 10 mg/l is required for the Wekiva River Protection Zone. There is no indication that Sanford would be willing to guarantee 10 mg/l, and meeting the Wekiva River Protection Zone standards through blending would be problematic because blending would have to occur before introduction into Seminole's distribution system. Finally, Sanford’s reclaimed water transmission system does not operate at a high enough pressure to provide the required flow to Seminole’s system. For these reasons, despite the fact the Agreement has been in effect for over a decade, Sanford has been unable to provide any reclaimed water to Seminole. Iron Bridge WWTP The Iron Bridge WWTP is owned by the City of Orlando (Orlando). Under a contract with Orlando, Seminole sends wastewater from its Southeast Service Area to the facility and is entitled to receive a like amount of reclaimed water from the facility for reuse, up to a limit of 8.5 mgd. As a result, Seminole does not need augmentation for its reclaimed water reuse system for the Southeast Service Area. In addition to itself using reclaimed water under this contract, Seminole also sends some to the City of Oviedo (Oviedo) and to the University of Central Florida (UCF) under a contract for reuse by them. Riverkeeper in particular contends that Seminole should be required to use reclaimed water from the Iron Bridge WWTP to meet its needs for augmentation of its reclaimed water reuse system in the Northwest Service Area. But this would require the construction of multiple conveyance systems and large storage capacity to move sufficient quantities of reclaimed water from the Iron Bridge WWTP to the Northwest Service Area. In addition, it would create an augmentation deficit in the Southeast Service Area or eliminate amounts of reclaimed water being sent to Oviedo and UCF for reuse. The evidence was that this is not a feasible option for Seminole. St. Johns River Seminole’s ultimate selection of the St. Johns River as an AWS source was the culmination of more than a decade of planning and study. The 1994 District Water Supply Needs and Source Assessment found groundwater resources to be limited in Central Florida. The District engaged in the Water 2020 process to identify AWS sources to meet future demands in the region. The Water 2020 evaluation led to the development of the 2000 Surface Water Treatability Study at Lake Monroe on the St. Johns River, near the Yankee Lake site, which found the St. Johns River to be a cost-effective public supply source. In 1999-2000, the District developed the 2000 District Water Supply Plan, which identified the St. Johns River as a potential AWS source for Central Florida. The 2000 District Water Supply Plan was updated in 2004 to specifically identify the St. Johns River near Lake Monroe as a potential water source. The 2005 District Water Supply Plan re-confirmed the St. Johns River near Lake Monroe as a specific AWS project. Updates to the 2005 District Water Supply Plan also identified the Yankee Lake Site as the proposed location of the St. Johns River near the Lake Monroe Project. Starting in 2006, the District began implementation of an action plan for development of AWS sources consistent with the CFCA rules. The CFCA planning process also resulted in the identification of the proposed Yankee Lake Facility as an appropriate AWS source to meet Seminole’s post-2013 demands. In evaluating the St. Johns River as an AWS source, Seminole considered existing withdrawals from the St. Johns River. The Cities of Melbourne and Cocoa have used the St. Johns River for potable supply for several decades, and both are permitted to withdraw quantities greater than the 4.5 mgd requested by Seminole for potable use. In addition, the Cities of Deland, Winter Springs, and Sanford each have been permitted to use the St. Johns River as a reclaimed water augmentation source. These existing permitted uses have proved to be safe and reliable and created a reasonable expectation the river can be used for potable supply and reclaimed water augmentation. In addition to the planning and regulatory efforts described above, the District also established MFLs at various locations along the St. Johns River. In particular, the District established MFLs at State Road (SR) 44, which is 10 miles downstream of the Yankee Lake Site. In developing this MFL, the District determined that 155 mgd could be withdrawn from the St. Johns River upstream of SR 44. Since the requested 5.5 mgd is less than 4% of this quantity, the MFL determinations provide assurance that the river is a reliable AWS source. The capital costs of a 4.5 mgd surface water facility at Yankee Lake on the St. Johns River would be $78 million. The operation cost for a surface water facility at Yankee Lake would be much less than a seawater desalination facility, which would require twice as much energy as the surface water source. Capability and Environmental Concerns General The St. Johns River runs from south to north, starting at its headwaters in Indian River, Osceola, and Okeechobee Counties and emptying into the Atlantic Ocean in Duval County. The District has adopted 6 MFLs along the St. Johns River, and there are numerous United States Geologic Survey gauging stations which provide a long-term record of stage and flow. The St. Johns River Watershed is about 8,900 square miles. The St. Johns has a very gradual elevation decline from its headwater to its mouth. Rainfall, surface runoff, springs, seepage from the aquifer, and ocean tides affect the flow of the River. These characteristics result in relatively slow flow, slow reaction to rainfall, and reverse flows from the tidal influences. Seminole evaluated the historic relationships between rainfall and stage and flow in the St. Johns River over time. Because rainfall is the primary source of water for the St. Johns River, there is a close relationship between rainfall and river flow and stage. The stage and flow of the St. Johns River has fluctuated over time. These fluctuations are attributable to the Atlantic Multidecadal Oscillation, which is a long-term natural rainfall frequency cycle. Increases and decreases in flow and stage of the St. Johns River are explained by changes in rainfall. The evidence does not demonstrate manmade impacts to river stage or flow. The major tributaries of the St. Johns River are the Wekiva and Ocklawaha Rivers. The evidence does not indicate detectable impacts to the flow in the main stem of the St. Johns River due to changes in flow in these major tributaries. MFLs MFLs are defined as limits beyond which further withdrawals would be significantly harmful to the water resources or ecology of the area. MFLs are established based on: the collection of ecological data to identify the most constraining water resource features; the development of hydrologic models to simulate the effects of water withdrawals; the preparation of reports; scientific peer review; and the adoption of standards by the District through formal rulemaking. See § 373.042, Fla. Stat. MFLs are used by the District to assess cumulative impacts on a water body. The MFLs determinations at SR 44 near Deland measure from withdrawals in existence prior to 1999. Existing permitted withdrawals on the St. Johns River upstream of the SR 44 MFL, plus Seminole’s proposed 5.5 mgd withdrawal, total 37.9 mgd. Of this total, 22 mgd was not being withdrawn from the St. Johns River prior to 1999. Seminole used a conservative 25 mgd of new withdrawals to evaluate potential cumulative impacts. A total of 57 mgd of withdrawals from the entire St. Johns River was used to evaluate cumulative impacts associated with Seminole’s proposed withdrawals. This amount reflects the total permitted quantity of water which was not being withdrawn prior to 1999. The District is required to establish recovery strategies when an MFL has been violated and prevention strategies when an MFL will be violated within the next 20 years. None of the MFLs on the St. Johns River require recovery or prevention strategies. Impact of Yankee Lake Withdrawal Flow and Stage The historic flow records do not indicate that the existing withdrawals have had a detectable impact on flow or stage. Since these withdrawals are significantly greater than Seminole’s proposed withdrawal, it is reasonable to conclude that Seminole’s proposed withdrawal also would have an undetectable impact on the St. Johns River. The historic relationship between rainfall and flow can also be used to evaluate whether historic withdrawals have had any impact on flow in the St. Johns River. A double-mass analysis of rainfall and flow on the St. Johns River does not indicate any change in the relationship between rainfall and flow over time, even as the quantity of withdrawals has increased. The evidence was that the proposed withdrawal of 5.5 mgd would not cause a measurable change in either the flow or stage of the St. Johns River on an individual basis or cumulatively with other withdrawals from the River. Salinity Seminole and the District used sophisticated hydrodynamic models to predict the impact of the proposed withdrawal, individually and cumulatively with other withdrawals on the St. Johns. The models were well-calibrated to observed data, including water level, velocity, salinity, and discharge. Pointing to differences between observed and modeled salinities, primarily at the Dames Point Bridge (relatively near the mouth of the river), Riverkeeper's modeling expert, Dr. Mark Luther, expressed concern that the models did not properly account for estuarine or overturning circulation and therefore did not accurately predict salinity changes. Dr. Peter Sucsy, who developed the models, recognized the importance of estuarine overturning circulation. However, with the exception of the Dames Point station, statistical analysis showed a very good fit between simulated and observed data. At the Dames Point Station, the differences between simulated and observed salinities are larger (1.6 parts per thousand). But that location is close enough to the mouth of the river that it often measures marine water and a narrow range in salinities. Taking this into consideration, the model matches the observed data reasonably well. Dr. Sucsy's models are sufficiently accurate to provide reasonable assurance with respect to harm to the estuary system from water withdrawals. Dr. Luther also testified that it would have been more appropriate to examine salinity changes for each layer of the hydrodynamic models, rather than using vertically-averaged salinity values. But Seminole's expert, Mr. Ivan Chou, determined that there was no perceptible difference in the salinity impacts derived from vertically-averaged salinity versus salinity values at specific model layers for the proposed 5.5 mgd and cumulative 57 mgd withdrawals. As a result, it was proper to use vertically-averaged salinities when evaluating the impact of Seminole’s proposed withdrawal. Using the hydrodynamic models, Mr. Chou compared salinity values at 60 points along the St. Johns River from the mouth of the river to Buffalo Bluff, which is 90 river miles upstream, for a pre-1999 baseline scenario, a 5.5 mgd individual withdrawal scenario, a cumulative withdrawal scenario of 25 mgd, a cumulative withdrawal scenario of 57 mgd, and the minimum flow scenario of 155 mgd. The baseline modeling scenario reflects the natural fluctuations in salinity that occur as a result of tidal influence and seasonal changes in rainfall. The natural fluctuation in salinity on a daily basis can be 7 to 8 parts per thousand (ppt), while the seasonal change can be as high as 20 ppt. When the simulated 5.5 mgd, 25 mgd, and 57 mgd withdrawals are plotted against the baseline salinity levels, whether for maximum or minimum daily or 5-year salinities, the differences are undetectable. (For the 155 mgd withdrawal scenario, there is a slightly increased salinity level, but the change is still a fraction of a ppt.) The same results occur when examining average salinities or dry season salinities (May and June). In the 57 mgd withdrawal scenario, the largest increase in average salinity under annual conditions is only 0.135 ppt, and under dry season conditions is only 0.170 ppt. Even in the 155 mgd scenario, the largest predicted increase in average salinity at any point on the St. Johns River is just 0.365 ppt. The withdrawal scenarios have minimal impact on the location of isohalines--a line representing a specific salinity level in the river. Under natural conditions, there are large daily and seasonal changes in the location of a particular isohaline due to tidal effects. For example, the 15 ppt isohaline moves 8.1 miles on the average day. In comparison, the withdrawal of 5.5 mgd would cause the 15 ppt isohaline to move by just 0.02 miles, a withdrawal of 25 mgd would cause the 15 ppt isohaline to move 0.07 miles, and a withdrawal of 57 mgd would cause the 15 ppt isohaline to move 0.59 miles during the dry season. The salinity modeling demonstrates that the impact of Seminole’s proposed 5.5 mgd withdrawal is so small as to be indiscernible with the field instruments used to measure salinity in the St. Johns River. The cumulative withdrawal scenarios of 25 mgd and 57 mgd are similarly minimal and would not be measurable using conventional instrumentation. Nutrients The most prominent manifestation of nutrient imbalance in the St. Johns River is the increase in algal biomass, which can result in algal blooms. In the St. Johns River, algal biomass begins to accumulate in April, and the potential for algal blooms continues through September. Seminole will not make any nutrient discharges to the St. Johns River as part of its proposed use of water. Instead, the proposed withdrawals will remove nutrients from the River. It was determined there would not be a significant hydrodynamic impact from any of the three withdrawal scenarios. A 5.5 mgd withdrawal results in just a 0.17% decrease in flow, a 25 mgd withdrawal results in a 0.8% decrease in flow, and a 57 mgd withdrawal results in a 1.8% decrease in flow. From 1995-2007, the average total nitrogen level in the vicinity of the Yankee Lake site was 1.51 mg/l, while the average total phosphorus concentration was 0.09 mg/l. For 2003- 2007, the average total nitrogen concentration was 1.29 mg/l, while the average total phosphorus concentration was 0.09 mg/l. For the 5.5 mgd withdrawal scenario, the quantity of water removed would result in a 0.13% reduction in nitrogen loading and 0.14% reduction in phosphorus loading compared to the 1995- 2007 levels, and a 0.11% reduction in nitrogen loading and 0.14% reduction in phosphorus loading compared to 2003-2007 levels. A comparison of flow and load reduction for the 5.5 mgd withdrawal shows no impact on water quality. The same relationship holds true for cumulative withdrawals of 25 mgd or 57 mgd. Withdrawals of water from the River can increase residence time, which in turn has the potential to increase biomass in the water body. Seminole and the District used another version of Dr. Sucsy's hydrodynamic model to simulate water age and evaluate the effect of 5.5 mgd and 55.4 mgd withdrawals on residence time in the Lower St. Johns River. Compared to the baseline condition of 1996-2005, a withdrawal of 5.5 mgd is projected to cause a slight increase in the duration of algal blooms at Racy Point and Lake George. Under baseline conditions, an algal bloom with a duration of 60 days is expected to occur once every other year, an algal bloom with a duration of 71 days is expected to occur once every three years, and an algal bloom with a duration of 115 days is expected to occur once every 20 years. When Seminole’s proposed 5.5 mgd withdrawal is applied to these baseline values, the duration of an algal bloom increases by less than one hour once every other year up to 3.2 hours once every 20 years. When the cumulative 55.4 mgd scenario is applied, the duration of an algal bloom increases by 22.6 hours once every other year up to 71 hours once every 20 years. It is possible to offset the elevated algal biomass resulting from the slight increase in residence time from surface water withdrawals by further reducing nutrient loading to the river. Seminole and the District propose to achieve this nutrient reduction through reductions in discharges from the Iron Bridge WWTP. The Iron Bridge facility currently discharges treated wastewater to the Little Econlockhatchee River (the Little Econ), a tributary of the St. Johns River. However, Seminole and the other Iron Bridge participants plan to eliminate the discharge of wastewater to the Little Econ through increased reclaimed water use. The cessation of discharges to the Little Econ from the Iron Bridge facility will more than offset the impacts of increased retention time caused by the Yankee Lake withdrawal. The load reduction achieved through elimination of the Little Econ discharges is 3.3 times greater than the load reduction that would have to be achieved in order to offset the increased residence time. Even at 11.59 mgd, the maximum permitted daily withdrawal from the Yankee Lake intake facility, the Iron Bridge offset would still be 1.7 times greater than the amount needed to offset increased residence time. The District and Seminole have agreed to an additional permit condition that would prohibit Seminole from withdrawing water from the St. Johns River on any day following a day when discharges have occurred to the Little Econ from April 1 to September 15. This additional condition provides reasonable assurance that the proposed CUP will not cause or contribute to an increase in nutrients in the River. It is not uncommon for the District to require permittees to work with other entities to make reclaimed water changes a condition for CUP issuance. Such a permit condition appears in a recent CUP issued to the Orlando Utilities Commission. Riverkeeper in particular contends that these permit conditions are not enforceable without the agreement of the other entities involved in Iron Bridge, namely those who would relinquish a right to discharge to the Little Econ. But the condition clearly is enforceable against Seminole. Ecological Evaluation The evidence provided reasonable assurance that there will be no discernable changes to key ecological parameters as a result of the Yankee Lake withdrawal, individually or cumulatively with other surface water withdrawals from the River system. Ongoing withdrawals on the Peace and Alafia Rivers having a much greater impact on the flow of water in those rivers than the proposed Yankee Lake withdrawal, individually or cumulatively, have not caused significant changes in vegetation, benthic invertebrates, fish population, phytoplankton population, or other indicators. The evidence was that there was no appreciable change in population of the American shad, a common species in the St. Johns River, between the 1970s and 2000s. No appreciable change in the biodiversity of fish species is expected as a result of the proposed Yankee Lake withdrawal, individually or cumulatively. Submerged aquatic vegetation (SAV) provides a static habitat and a food source for aquatic species. The most common SAV in the St. Johns River is Vallisneria americana, or tape grass, which occurs in freshwater and oligohaline habitats. Its ideal salinity level is 1 ppt or less, but it can tolerate salinities up to 8 or 9 ppt. Between 1999 and 2001, an extended drought resulted in a fairly sizable decline in Vallisneria in the Lower St. Johns River due to higher salinities. Data from 2003-2004 indicate that Vallisneria had expanded and re-colonized areas with salinities up to 5 ppt. Since changes in salinity as a result of Seminole’s proposed withdrawal, on an individual or cumulative basis, will be small, it is not expected that there will be a significant impact on Vallisneria, or the aquatic life that depends on it. Riverkeeper witness Robin Lewis testified that existing withdrawals have reduced flows in the St. Johns River, which has impacted the ability of SAV to recover from higher salinities that occur during droughts. However, the graph he relied on to show a declining trend in flows in the St. Johns River only reflected data recorded through 2002; the most recent flow data indicates there has been an increase in flows, with the highest flow on record at SR 44 occurring in August 2008. The evidence provided reasonable assurance that there will be no impact to macroinvertebrates as a result of Seminole’s proposed withdrawal. Macroinvertebrates tolerate wide salinity ranges, and there would be no meaningful change in the distribution of macroinvertebrates due to Seminole’s proposed withdrawal. Impingement and Entrainment The intake structure for the proposed Yankee Lake facility is designed to prevent impingement and entrainment by minimizing the velocity of water entering the structure and by using a series of screens to prevent entry into the structure. The intake structure is in an area where the intake velocity would be equal to or less than the velocity of the river, making the intake structure area an unattractive place for fish to spawn. While fish and other mobile aquatic life would not be expected to be impinged or entrained, it is expected that some immobile aquatic life forms, such as certain fish eggs, will become entrained. Jacksonville’s consultant Terry Cheek estimated that 35,000 American shad eggs could be entrained by Seminole’s proposed withdrawal each year. However, an American shad female typically carries about 470,000 eggs and spawns repeatedly during a season, meaning a single female can produce more than a million eggs in a season. Meanwhile, the average number of female shad removed from the St. Johns River due to recreational fishing is about 1,130 individuals, meaning that fishing removes about 530 million eggs from the St. Johns River every year. Even if the egg density were two orders of magnitude greater than Mr. Cheek assumed, entrainment would remove far fewer eggs from the St. Johns River than recreational fishing. Public Interest The evidence provided reasonable assurance that the issuance of Seminole’s CUP is in the public interest. It will provide a source of needed potable water other than stressed fresh groundwater. It will allow Seminole to maximize reuse of reclaimed water, which will also reduce its need for fresh groundwater. There is reasonable assurance that environmental harm from the issuance of Seminole’s CUP will not be significant and has been reduced to an acceptable amount. St. Johns County in particular contends that, despite all the evidence of reasonable assurance provided, not enough consideration has been given to the impact of Seminole’s CUP project on the Wekiva River Aquatic Preserve and Seminole's Black Bear Wilderness Area. However, additional consideration of those kinds of impacts will be considered in further required permitting for the project. The evidence in this case provided reasonable assurance that the proposed water withdrawal will not significantly harm those natural resources and that harm to those resources has been reduced to an acceptable amount. The Petitioners contend that issuance of Seminole’s CUP should be delayed until after the District completes its two-year AWS Study of the entire St. Johns River basin, including the Oklawaha. The greater weight of evidence indicates that such a delay is unwarranted and would impose additional unnecessary costs on Seminole. Starting in 2006, Seminole implemented an increased rate structure to finance a $156 million bond issue for its water and wastewater capital improvement program, including the Yankee Lake Project. Seminole has also received a $7.5 million grant from the District to finance the project. Seminole has already incurred approximately $4.3 million in engineering design services. If the project were delayed one year, it would incur about $4.5 million of additional costs. If the Yankee Lake Project were delayed more than a year, Seminole would incur additional cost of $15.4 million, including the expenditures to date and the loss of the $7.5 million in grant money. Given the extra costs that would be incurred by Seminole and its residents as a result of any delay in implementation of the Yankee Lake Project, deferring Seminole’s CUP until after completion of the larger AWS study would not be in the public interest. Petitioners' Standing Riverkeeper bases its standing in part on allegations that Seminole’s proposed use will impact the use and enjoyment of the St. Johns River by a substantial number of Riverkeeper’s members. A substantial number of Riverkeeper's members use and enjoy the River for recreation, boating, fishing, watching wildlife, and similar activities. However, it was not proven that Seminole's proposed CUP will affect their use or enjoyment of air, water, or natural resources of the River. Riverkeeper also bases its standing in part on Section 403.412(6), Florida Statutes, which allows not-for- profit corporations to establish standing if they have 25 members residing in the county where the proposed activity is to take place. Riverkeeper introduced evidence that, by the time of the final hearing, it had more than 25 members residing in Seminole County. Some of these Seminole residents did not join Riverkeeper until shortly before the final hearing. Seminole did not object to testimony regarding the new Seminole members of Riverkeeper, and it was given an opportunity to depose the witness during the hearing but declined to do so. (Seminole's objection to admission of an updated membership list into evidence was overruled.) At the conclusion of Riverkeeper's case on the second-to-last day of the final hearing, Riverkeeper made an ore tenus motion to amend its petition to allege standing based on Section 403.412(6), Florida Statutes, and ruling was reserved. See Conclusion of Law 141, infra, for the ruling. Jacksonville and St. Johns County base their standing on Section 403.412(5), Florida Statutes, which allows local governments to establish standing by filing a verified pleading alleging that the permitted activity will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state. Jacksonville and St. Johns County filed the verified petitions required by Section 403.412(5), Florida Statutes. In addition, the evidence proved that Seminole’s proposed CUP will impair, pollute, or otherwise injure the air, water, or other natural resources of the state to some extent, even if not enough to require denial of the CUP application, especially before the agreement between the District and Seminole to add a condition to the CUP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order granting Seminole's pending CUP 95581 with the conditions specified in the TSR and the additional condition proposed by the District and Seminole regarding nutrient impacts. Jurisdiction is retained for up to 30 days after the District's entry of its final order to rule on Seminole's motions for attorney's fees and costs under Sections 57.105(4) and 120.595(1), Florida Statutes, by a separate final order if Seminole invokes the exercise of that jurisdiction within the 30-day time period. DONE AND ENTERED this 12th day of January, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2009.
The Issue Whether a consumptive-use permit for quantities of water as applied for should be granted.
Findings Of Fact Applicant applied for a permit for a public supply of water from two (2) wells to accommodate 3,100 family units in Hillsborough County, Florida. Each well to be 500 feet deep and designated as "new use", i.e., a use not existing prior to January 1, 1975. Well "No. 1" would draw 72,000 gallons per day and well "No. 2", 682,000 gallons per day. The center of withdrawal is located at latitude 28 degrees 6' 18" North, longitude 82 degrees 29' 48" West in Hillsborough County, Florida. The applicant lists 802.2 acres as being owned, leased or otherwise controlled by it. Notice was published in a newspaper of general circulation, to-wit: The Tampa Tribune on April 28 and May 5, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were sent by certified mail to Lorenzo Lakes, A Joint Venture, Route 2, Box 737A, Lutz, Florida, and Hillsborough Dairy, Route 1, Box 115, Tampa, Florida A letter was received although it was not designated a letter of objection. The author of said letter is present at this hearing. His name is Mr. John Logan, Water Resources Director, Hillsborough County, Florida. The letter suggests that action on the subject application would be inappropriate at this time inasmuch as a part of the development is to be deeded to Hillsborough County for public roadways. A specific area does not appear to be established but it may exceed 50 acres. Additional acreage may be needed for flood easements for the extension of channel "F", a proposed part of the upper Tampa Bay Watershed Project. No formal letters of objection were received. The following exhibits were introduced without objection: Application for permit Proof of publication Letter from Mr. John Logan The witnesses were duly sworn and agreement by the parties reached on each point to be considered under Chapter 373, Florida Statutes, and the Rules and Regulations promulgated pursuant thereto, particularly Rule 16J-2.11, with the exception that certain conditions were recommended by Mr. George Szell, Hydrologist for the Permittee, and said conditions were agreed to by the Permittee. Mrs. Sally Casper appeared as a member of the public questioning the need for new housing and objecting in essence to Rule 16J-2.11(2)(e) which restricts consideration of lake stages or vegetation to those not controlled by the applicant. Upon the request of the Hearing Officer the parties agreed to enter into a joint order of stipulation and submit said order to the Hearing Officer. Said stipulation was received by the Hearing Officer on July 7, 1975, and is attached hereto and made a part hereof and marked "Supplement to Record".
Findings Of Fact The subject applications request permits from the Central and Southern Florida Flood Control District (FCD) for the agricultural irrigation and drainage of 1,780 acres of citrus lands. Received into evidence without objection were the public notices of hearing appearing in The News Tribune, Fort Pierce, Florida, and The Stuart News, Stuart, Florida; the three permit applications submitted on behalf of Kay-One Grove, Ltd., and the Revised Staff Report of the FCD. The amount of water requested by the applications is 2,670 acre-feet per year with a maximum monthly withdrawal of 600 acre-feet. The Revised Staff Report, prepared by Doug Winter, a Civil Engineer with the Hydrology Division of the FCD, recommended an annual allocation of 1,619.8 acre-feet with a maximum monthly withdrawal of 574.8 acre-feet. This Report is attached hereto. Mr. Kenneth Harris, a consulting engineer for Kay-One Grove, Ltd., gave a summation of the applications and corrected page 1 of the Revised Staff Report, under the first paragraph of "A", to change "Township 37 South" to "Township 38 South". The summation was substantially the same as that set forth on pages 1 and 2 of the Revised Staff Report. The existing facilities were also represented to be as set forth in the FCD Report. Mr. Doug Winter testified that he evaluated the subject applications and prepared the Revised Staff Report, and testified as to its contents. As to the drainage aspects of the applications, Mr. Winter testified that there would be no adverse effect on the receiving water body since the drainage capacity of the applicant's land is within the FCD's limitations. As to the agricultural uses of the water, Mr. Winter used three criteria to determine the appropriate allocation. These three criteria were the adjusted basin yield, the supplemental crop requirement for citrus and the quantity requested by the applicant. The allocation is normally the lesser of these three quantities. It was determined that the adjusted basin yield was the limiting criteria and the amount of water available for annual allocation is 10.92 inches per acre per year for the C-23 basin, which equates over the applicant's 1,780 acres to be 1,619.8 acre-feet. The FCD uses this 10.92 figure for all allocations within the C-23 basin. The maximum monthly pumpage figure based on the amount of water which would be needed in the driest month to offset a 2 in 10 year drought, modified by an 80 percent application efficiency, was determined to be 3.875 inches par acre per month, or 574.8 acre-feet or 187.3 million gallons for the entire tract of 1,780 acres. This is in contrast to the 4.0 inches per acre maximum monthly withdrawal requested by the applicant, which would equate to 600 acre-feet. As to the use of ground water from three wells located on the property, Mr. Winter determined that the allocation would be the same as for the C-23 withdrawals since the recharge of these wells would be the same as the recharge of the surface water source. Mr. Winter then reiterated the conclusions and recommendations set forth in the Revised Staff Report. It was recommended that a water use permit be issued pursuant to Application Numbers 23238 and 22046 for an annual allocation of surface water and/or ground water in the amount of 1,619.8 acre-feet, which represents 10.92 inches per acre per year, with the condition that the maximum monthly withdrawal of surface water and ground water for the combination of the two not exceed 187.3 million gallons (which represents 3.875 inches per acre or 574 acre-feet) during times of adequate water level or moderate drought conditions. Should severe drought conditions occur, the FCD will issue an order requiring a reduction of water withdrawal rates based on a water shortage plan developed by the FCD. It was recommended that a surface water management permit be issued pursuant to Application No. 22039 for the operation of a system consisting of ditches, dikes, pumps and culverts as described in the application with the conditions set forth on page 11 of the Revised Staff Report. Finally, it was recommended that a right-of-way permit be issued authorizing a 48 inch culvert connection through the FCD's south right-of-way of C-23 adjacent to Project Culvert 15 and the use of Project Culvert 13. Mr. Harris then sought a clarification of the maximum monthly pumpage amount and was assured that the applicant could apply for emergency authorization of further withdrawals under the FCD's rules and regulations, provided extreme drought conditions were not existent. It was explained that the monthly quantity allowed here, the 3.875 inches, was based on reports of the average rainfall for the Fort Pierce area and the crop requirements. The Hearing Officer then asked Mr. Harris to explain his objections, if any, to the Revised Staff Report. Mr. Harris explained that the difference between the amount of water requested and that received in the Report is small, less than 10 percent. His only other objection was to the maximum allowable runoff figure. He would like this to be increased from the recommended 2.2 inches to 4 inches. It was explained that the allowable figure is based upon the maximum capacity of the canal. Mr. Harris stated that the applicant would probably make further application for additional run-off in the future.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the permits requested and the right-of-way permit be issued in accordance with the recommendations set forth on pages 9 through 11 of the attached Revised Staff Report. Respectfully submitted this 7th day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. E.D. Holcomb, Jr. General Manager Kay-One Grove, Ltd. Post Office Box 1120 Fort Pierce, Florida 33450 Stephen A. Walker, Esquire Attorney for the Central and Southern Florida Flood Control District Post Office Box V West Palm Beach, Florida
Findings Of Fact On March 30, 1978, Lee County applied to the Department for permits pursuant to Chapters 253 and 403, Florida Statutes, to improve the existing Daniels Road in Lee County, Florida, from a two lane unimproved facility to a two lane paved road. The project site is located in southeastern Lee County, Florida, and crosses Six Mile Cypress Swamp. The proposed improvement would require excavation of material from submerged lands of waters of the state to remove a part of the existing dirt roadbed, placing of fill material onto submerged lands of waters of the state to widen the existing roadbed, and construction of two concrete bridges and two variable crest weirs. After receipt of the application, the Department reviewed the application, and, after consultation with Lee County officials, recommended issuance of the requested permit subject to the following conditions: Elimination of a proposed bicycle path; Deletion of a proposed spreader ditch and the dredging necessary for that ditch; Formulation and submission to the Depart- ment by Lee County of an acceptable management plan and schedule for maintaining water levels and indigenous swamp communities within the swamp; Organization of a Melaleuca Control Committee, together with preparation and implementation of a program to eradicate melaleuca within the right- of-way; and Revegetation of willows in the construction area. In their Amended Petition, Petitioners contest the proposed issuance of the requested permit on grounds that the permit condition requiring development of an acceptable water management plan should be accomplished prior to issuance of the permit; that the long range environmental impact of the proposed project has not been assessed; that the application does not contain information sufficient to give reasonable assurances that it will no result in deterioration of water quality; that insufficient information has been provided to demonstrate that the project will not have an adverse long-range impact on the conservation of fish, marine and wildlife, or other natural resources; that the aquifer recharge area adjacent to the proposed project will be substantially reduced; that sheet flow of overland water will be irretrievably altered; that land uses surrounding the Six Mile Cypress Swamp will contribute to deteriorating water quality; that elimination of the proposed bicycle path would deny Petitioners the right to utilize pedestrian, energy conserving and/or non-polluting transportation; and that the health and welfare of the Florida panther will be threatened by construction in the Six Mile Cypress Swamp which serves as habitat for this endangered species. Petitioners allege in their Amended Petition that their substantial interests would be affected ". . . in that Petitioner Joseph H. Burgess, a resident of Daniels Road, may suffer from downstream flooding as a result of issuing this permit." The Amended Petition alleged that Petitioner, Sierra Club - Calusa Group would be substantially affected by the proposed agency action in that they would ". . . be deprived of an area utilized for nature study . . .," in that the project would ". . . seriously impair the group's ability to study bird life and enjoy the natural scenic beauty of a presently relatively undisturbed area. . . ." The Amended Petition also alleged that Petitioners, Mary Ann Wallace and Joseph H. Burgess, would be substantially affected ". . . as nearby residents, who will be denied the right to enjoy a proposed regional park on the south side of Daniels Road in the Six Mile Cypress Swamp as a direct result of issuing this permit." Neither Joseph H. Burgess, Ellen Peterson, nor any representative testifying on behalf of Sierra Club - Calusa Group appeared or testified at the final hearing in this cause. The only named petitioners appearing and testifying at the final hearing were Mary Ann Wallace and Thomas Geary. Neither of these petitioners offered any testimony to establish that they owned property in Lee County, Florida, that they used any of the waters or other natural resources in the area of the Six Mile Cypress Swamp for nature study, recreation or other purpose, or that they would personally be injured or otherwise affected by issuance of the requested permit or the alleged environmental impacts arising therefrom. At the conclusion of Petitioners' case, the Department and Lee County moved to dismiss the Amended petition on grounds that Petitioners had failed to establish that their substantial interests would be affected by the proposed agency action as required by Section 120.57, Florida Statutes, which motions were granted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered by the State of Florida, Department of Environmental Regulation, dismissing the Amended Petition in this cause. DONE AND ENTERED this 27th day of February 1979 in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February 1979. COPIES FURNISHED: Isaac Anderson, Esquire 2115 Main Street Suites A and B Fort Myers, Florida 33901 Ray Allen, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Thomas M. Brondstetter, Esquire Assistant Lee County Attorney Post Office Box 398 Fort Myers, Florida 33902 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ELLEN PETERSON, et al., Petitioners, vs. CASE NO. 78-1467 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION and LEE COUNTY BOARD OF COUNTY COMMISSIONERS, Respondents. /
The Issue The issue to be determined in this case is whether 1044PVB, LLC (“Applicant”), is entitled to Environmental Resource Permit (“ERP”) No. IND-109-143282-1 from the St. Johns River Water Management District (“District”), authorizing the construction of a surface water management system to serve a proposed residential development in St. Johns County, Florida.
Findings Of Fact The Parties Petitioner Nancy Condron is a resident and landowner in St. Johns County. Her residence is located across Ponte Vedra Boulevard from the Project. Petitioner uses the nearby Guana River Wildlife Management Area for nature-based recreation, including hiking and bird-watching. Applicant is a foreign limited liability company and the applicant for the ERP at issue in this case. The District is an independent special district granted powers and assigned duties under chapter 373, Florida Statutes, including powers and duties related to the regulation of construction activities in wetlands. The Project is within the boundaries of the District. The Project Site The Project site is 17.13 acres located at 1044 Ponte Vedra Boulevard in St. Johns County, Florida. The site currently consists of forested lands on the east and west and pasture areas in the middle. There is an existing trail road that runs the length of the property and a small residence. The site has four small ponds excavated as watering holes, ranging in size from 0.04 to 0.24 acres. There are 4.41 acres of wetlands and other surface waters on the site. There is a 3.49-acre area of mixed forested wetland on the site that continues offsite to the south and west. There are also three isolated wetlands on the site, each less than a half-acre in size. The wetland system adjacent to the Project site flows to the Guana River. The Guana River is a freshwater, Class III waterbody. It is an Outstanding Florida Water, but has been designated by the Department of Environmental Protection as impaired for nutrients. The site is not used by threatened or endangered species for feeding, nesting, or breeding. The Project The proposed Project is a 22-lot, single-family subdivision. The proposed surface water management system for the Project includes curb and gutter paved roadways, storm inlets, concrete pipes, vegetated natural buffers, treatment swales, and a wet detention stormwater pond. The wet detention stormwater pond would discharge into adjacent wetlands that flow to the Guana River. Wetlands The point of discharge from the Project’s stormwater management system is not in the designated Outstanding Florida Water. Applicant proposes to fill the four ponds and the three isolated wetlands. Applicant also proposes to fill 0.28 acres of the larger wetland. The Project includes a number of upland buffers that are a minimum of 15 feet in width and average of 25 feet in width. These buffers are intended to prevent potential adverse secondary impacts to adjacent wetlands. All wetland impacts and mitigation were assessed using the Uniform Mitigation Assessment Method (UMAM) in Florida Administrative Code Rule 62-345. The UMAM assessment takes into consideration the location and landscape support, water environment, and community structure of the wetlands to be impacted. The District also considers the condition, hydrologic connection, uniqueness, location, and the fish and wildlife utilization of the wetlands and other surface waters. The District did not require mitigation for filling the artificial ponds. The District also did not require mitigation for filling the isolated wetlands because each is less than a half-acre in size. As mitigation for filling 0.28 acres of the larger wetland, Applicant would purchase 0.25 mitigation bank credits from the St. Marks Pond Mitigation Bank. The St. Marks Pond Mitigation Bank is located in the same drainage basin as the wetland area that would be filled. The District determined that purchasing the mitigation bank credits would offset the functional loss associated with filling part of the wetland. Two areas on the site where no upland buffers are proposed were assessed for secondary impacts to wetlands in the UMAM evaluation. The mitigation bank credits proposed for the Project would offset all of the adverse, direct, and secondary impacts to wetlands or surface waters associated with this Project. Because direct and secondary impacts would be fully mitigated, the Project would not cause cumulative impacts. Water Quantity A majority of the Project’s stormwater runoff would be conveyed to the wet detention pond. The wet detention pond provides water quantity protection by attenuating the post- development peak rate of discharge. Applicant modeled the pre-development peak rate of discharge and the post-development peak rate of discharge. The modeling indicated that the post-development peak rate of discharge will not exceed the pre-development peak rate of discharge for the 25-year, 24-hour storm event. Section 3.3 of the Applicant's Handbook, Volume II, prohibits a reduction in the 10-year or 100-year floodplain for projects with an upstream drainage basin of five square miles or greater. The proposed Project has an upstream drainage basin of 4.6 square miles, so this criterion is not applicable. Applicant showed the Project would increase offsite flood elevations by only 0.01 feet, which is negligible. The Project would not cause adverse water quantity impacts to receiving waters or adjacent lands. Water Quality Water quality would be managed in the Project through a combination of wet detention pond, swales, and vegetative natural buffers (“VNBs”). The wet detention pond would treat a majority of the runoff from the Project. Section 8 of the Applicant’s Handbook, Volume II, contains presumptive criteria for the design of a wet detention pond. The proposed wet detention pond meets the presumptive criteria. Therefore, the detention pond is presumed to provide reasonable assurance that the water quality of receiving waters will be protected. Applicant is proposing to construct swales at the back of Lots 20, 21, and 22 to treat runoff by infiltration. Section 9 of the Applicant’s Handbook, Volume II, contains presumptive criteria for swale system design and performance. The Project meets the presumptive criteria for swales. Applicant is proposing VNBs on Lots 1 through 14. The use of VNBs is a commonly-used best management practice accepted by the District for treating stormwater runoff. Like swales, VNBs treat runoff by infiltration. Stormwater runoff from the backyards of Lots 1 through 14 would drain to the VNBs. On some of these lots, stormwater runoff from the front yards, side yards, and rooftops would also drain to the VNBs. The lots would be graded so that runoff would sheet flow to the VNBs to maximize their treatment function. The VNBs would have native soils and plants. The VNBs would have Type A soils, which are well-drained soils that provide the highest rate of infiltration and the most permeability. Petitioner contends that, because soil borings were not taken at the location of the VNBs, reasonable assurance was not provided that the VNBs would function as proposed. However, Petitioner did not show that the soils at the VNB locations were unsuitable soils. In addition, Applicant agreed to use Type A soils in the VNBs. Therefore, reasonable assurance that the VNBs would have suitable soils was provided by Applicant. Petitioner referred to a draft rule to support her contention that the proposed VNBs are not properly designed, but the draft rule has no controlling effect and is hearsay. The Applicant’s Handbook does not contain presumptive criteria for VNBs. Applicant demonstrated that the VNBs would infiltrate 80 percent of the runoff from a three-year, one-hour storm event, which is the same treatment efficiency the District requires when swales are used. Reasonable assurance was provided that the VNBs would function as proposed. Because the Project would discharge to wetlands that flow to the Guana River, a waterbody impaired by nutrients, section 2.2 of the Applicant’s Handbook, Volume II, requires Applicant to demonstrate there would be a net improvement in water quality with respect to nutrients. Applicant performed a pollutant loading analysis using the BMPTRAINS model. The BMPTRAINS model is a generally-accepted tool used by stormwater engineers for this purpose. The BMPTRAINS model incorporates the information about the pre- and post-development conditions associated with land use and impervious area. The model accounts for site-specific conditions, including the elevation of the groundwater table and storage capacity of the soil. The design of the surface water management system is then incorporated into the model to estimate the pollutant removal efficiency and estimate the average annual pollutant load that will leave the site. Applicant’s BMPTRAINS modeling indicated that the average annual post-development loading for total nitrogen and total phosphorus would be substantially less than the pre- development loading for those nutrients. Therefore, Applicant demonstrated the Project would result in a net improvement. Operation & Maintenance The Ponte Vedra Beach Preserve Homeowners Association would be the entity responsible for operation and maintenance of the stormwater management system. The wet detention pond, swales, and VNBs would be located within an easement and maintained by the homeowner’s association. Applicant and the Ponte Vedra Beach Preserve Homeowners Association have the ability to accept responsibility for the operation and maintenance of the Project. Public Interest An applicant for an ERP must demonstrate that a proposed project affecting wetlands and other surface waters would not be contrary to the public interest. This determination is made by balancing seven factors found in section 10.2.3(a) through (g) of the Applicant’s Handbook, Volume I. Public interest factor (a) is whether the regulated activity will adversely affect public health, safety, or welfare, or the property of others. There is no aspect of the Project that would affect public health, safety, or welfare, except the potential for flooding. Reasonable assurance was provided by Applicant that the Project would not cause flooding. Factor (b) is whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats. The mitigation bank credits offset all of the potential adverse impacts that the proposed project would have on the conservation of fish and wildlife. Factor (c) is whether the regulated activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The parties stipulated that the Project will not adversely affect navigation or cause harmful erosion or shoaling. The record evidence shows the Project will not adversely affect the flow of water. Factor (d) is whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. The Project would not affect fishing or recreational values in the vicinity. The mitigation bank credits offset all of the potential adverse impacts the proposed project would have on marine productivity in the vicinity. Factor (e) is whether the regulated activity will be of a temporary or permanent nature. The activities are of a permanent nature. The mitigation is also permanent. Factor (f) is whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources. The Project will have no effect on historical and archaeological resources. Factor (g) is the current condition and relative value of functions being performed by areas affected by the proposed regulated activity. The relatively small loss of functional value would be offset by the proposed mitigation. Considering and balancing these seven factors, the Project would not be contrary to the public interest.
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 approving the issuance of Environmental Resource Permit No. IND-109-143282-1 to 1044PVB, LLC, with the conditions set forth in the Technical Staff Report dated April 11, 2016. DONE AND ENTERED this 16th day of June, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2016. COPIES FURNISHED: Karen C. Ferguson, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 (eServed) Jane West, Esquire Josh Smith, Esquire Jane West Law, P.L. 6277 A1A South, Suite 101 St. Augustine, Florida 32080 (eServed) Eric Olsen, Esquire Amelia A. Savage, Esquire Hopping, Green and Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Ann B. Shortelle, Ph.D., Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 (eServed)
The Issue Whether Rules 40B-1.702(4); 40B-4.1020(12) and (30); 40B-4.1030; 40B-4.1040(1)(b) and (c); 40B-4.2030(4); 40B-4.3000(1)(a); 40B-4.3010; 40B-4.3020; 40B-4.3030; 40B- 4.3040; and 40B-400.103(1)(h), Florida Administrative Code, of the Suwannee River Water Management District, are an invalid exercise of delegated legislative authority for reasons described in the Second Amended Petition to Determine Validity of Rules.
Findings Of Fact Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. The District is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an Environmental Resource Permit (ERP) issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between the District and the Department (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the work of the district (WOD) impacts. Petitioner has not filed a permit application with the District regarding the project. It is Petitioner's position that to do so would be futile. The Challenged Rules The rules or portions thereof which are challenged in this proceeding are as follows: Rule 40B-1.702(4), Florida Administrative Code, reads as follows: (4) A works of the district permit under Chapter 40B-4, F.A.C., must be obtained prior to initiating any project as outlined in (3) above within a regulatory floodway as defined by the District. Rule 40B-4.1020(12) and (30), Florida Administrative Code, read as follows: (12) "Floodway" or 'regulatory floodway" means the channel of a river, stream, or other watercourse and adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the 100-year flood elevation more than a designated height. Unless otherwise noted, all regulatory floodways in the Suwannee River Water Management District provide for no more then one-foot rise in surface water. * * * (30) "Work of the district" means those projects and works including, but not limited to, structures, impoundments, wells, streams, and other watercourses, together with the appurtenant facilities and accompanying lands, which have been officially adopted by the governing board as works of the district. Works of the district officially adopted by the board are adopted by rule in Rule 40B-4.3000 of this chapter. Rule 40B-4.1030, Florida Administrative Code, reads as follows: The implementation dates of this chapter are as follows: January 1, 1986 for Rule 40B- 4.1040(1)(a) which requires persons to obtain surfacewater management permits. April 1, 1986 for Rule 40B- 4.1040(1)(b) and Rule 40B-4.3040 which require persons to obtain works of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Alapaha River and its floodway in Hamilton County, Florida; The Aucilla River and its floodway in Jefferson, Madison, or Taylor counties, Florida; The Suwannee River or its floodway in Columbia, Hamilton, Lafayette, Madison, or Suwannee counties, Florida; or The Withlacoochee River and its floodway in Hamilton or Madison counties, Florida. (c) July 1, 1986 for Rule 40B-4.1040(1)(b) or 40B-4.3040 which require persons to obtain work of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Santa Fe River and its floodway in Alachua, Bradford, Columbia, Gilchrist, Suwannee, or Union counties, Florida; or The Suwannee River and its floodway in Dixie, Gilchrist, or Levy counties, Florida. Rule 40B-4.1040(1)(b) and (c), Florida Administrative Code, reads as follows: (1) Permits are required as follows: * * * Works of the district development permit prior to connecting with, placing structures or works in or across, discharging to, or other development within a work of the district. When the need to obtain a works of the district development permit is in conjunction with the requirements for obtaining a surfacewater management permit, application shall be made and shall be considered by the district as part of the request for a surfacewater management permit application. Otherwise, a separate works of the district development permit must be obtained. Rule 40B-4.2030(4), Florida Administrative Code, reads as follows: (4) The new surfacewater management systems or individual works shall not facilitate development in a work of the district if such developments will have the potential of reducing floodway conveyance. (emphasis supplied) Rule 40B-4.3000(1)(a), Florida Administrative Code, reads as follows: The governing board is authorized to adopt and prescribe the manner in which persons may connect with or make use of works of the district pursuant to Section 373.085, Florida Statutes. Further, Section 373.019(15) provides that works of the district may include streams and accompanying lands as adopted by the governing board. In order to implement the non-structural flood control policy of the district, the governing board finds it is necessary to prevent any obstruction of the free flow of water of rivers and streams within the district. Therefore, the governing board does hereby adopt the following rivers and their accompanying floodways as works of the district: The Alapaha River and its floodway in Hamilton County, Florida; . . . . Rule 40B-4.3010, Florida Administrative Code, reads as follows: A general works of the district development permit may be granted pursuant to the procedures in Rule 40B-1.703 to any person for the development described below: Construction of a structure for single-family residential or agricultural use including the leveling of land for the foundation and associated private water supply, wastewater disposal, and driveway access which is in compliance with all applicable ordinances or rules of local government, state, and federal agencies, and which meets the requirements of this chapter. A general permit issued pursuant to this rule shall be subject to the conditions in Rule 40B-4.3030. Rule 40B-4.3020, Florida Administrative Code, reads as follows: Content of Works of the District Development Permit Applications. Applications for a general work of the district development permit shall be filed with the district and shall contain the following: Form 40B-4-5, "Application for General Work of the District Development Permit," Suwannee River Water Management District, 4-1-86, hereby incorporated by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the applicant or owner; Copies of all permits received from local units of government, state, or federal agencies, specifically a copy of the building or development permit issued by the appropriate unit of local government, including any variances issued thereto, and a copy of the onsite sewage disposal system permit issued by the Florida Department of Health and Rehabilitative Services under Chapter 10D- 6, Florida Administrative Code; A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon; and Any supporting calculations, designs, surveys, or applicable documents, which in the applicant's opinion, may support the application. Applications for individual or conceptual approval works of the district development permits shall be filed with the district and shall contain the following: Form 40B-4-4, "Application for Surfacewater Management System Construction, Alteration, Operation, Maintenance, and/or Works of the District Development", Suwannee River Water Management District, 10-1-85, hereby adopted by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the owner. General project information including: The applicant's project name or identification number; The project location relative to county, section, township, and range, or a metes and bounds description; The total project area in acres; The total land area owned or controlled by the applicant or owner which is contiguous with the project area; A description of the scope of the proposed project including the land uses to be served; A description of the proposed surfacewater management system or work; A description of the water body or area which will receive any proposed discharges from the system; and Anticipated beginning and ending date of construction or alteration. Copies of all permits received from, or applications made to, local units of government, state, or federal agencies. A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon. Any supporting calculations, designs, surveys, or applicable legal documents, which in the applicant's opinion, support the application. Copies of engineer or surveyor certifications required by this chapter. Rule 40B-4.3030, Florida Administrative Code, reads as follows: Conditions for Issuance of Works of the District Development Permits. The district will not approve the issuance of separate permits for development in a work of the district for any proposed project that requires a district surfacewater management permit pursuant to Part II of this chapter. For such projects, development in a work of the district may be authorized as part of any surfacewater management permit issued. The district will not approve the issuance of a works of the district development permit for any work, structures, road, or other facilities which have the potential of individually or cumulatively reducing floodway conveyance or increasing water-surface elevations above the 100-year flood elevation, or increasing soil erosion. The district will presume such a facility will not reduce conveyance or increase water-surface elevations above the 100-year flood elevation or increase soil erosion if: Roads with public access are constructed and laid out in conformance with the minimum standards of local government. Where roads are not required to be paved, the applicant must provide design specifications for erosion and sediment control. Where roads are required to be paved, swales will generally be considered adequate for erosion and sediment control; Buildings in the floodway are elevated on piles without the use of fill such that the lowest structural member of the first floor of the building is at an elevation at least one foot above the 100-year flood elevation; The area below the first floor of elevated buildings is left clear and unobstructed except for the piles or stairways; A permanent elevation monument is established on the property to be developed by a surveyor. The monument shall be adequate to establish land surface and minimum buildup elevations to the nearest 1/100 of a foot; No permanent fill or other obstructions are placed above the natural grade of the ground except for minor obstructions which are less than or equal to 100 square feet of the cross-sectional area of the floodway on any building or other similar structure provided that all such obstruction developed on any single parcel of land after the implementation date of this chapter is considered cumulatively; No activities are proposed which would result in the filling or conversion of wetlands. For any structure placed within a floodway which, because of its proposed design and method of construction, may, in the opinion of the district, result in obstruction of flows or increase in the water surface elevation of the 100-year flood, the district may require as a condition for issuance of a work of the district development permit that an engineer certify that such a structure will not obstruct flows or increase 100-year flood elevations. The following conditions shall apply to all works of the district development permits issued for development on lands subdivided after January 1, 1985: Clearing of land shall be limited [except as provided in (b) and (c) below] to that necessary to remove diseased vegetation, construct structures, associated water supply, wastewater disposal, and private driveway access facilities, and no construction, additions or reconstruction shall occur in the front 75 feet of an area immediately adjacent to a water. Clearing of vegetation within the front 75 feet immediately adjacent to a water shall be limited to that necessary to gain access or remove diseased vegetation. Harvest or regeneration of timber or agricultural crops shall not be limited provided the erosion of disturbed soils can be controlled through the use of appropriate best management practices, the seasonal scheduling of such activities will avoid work during times of high-flood hazard, and the 75 feet immediately adjacent to and including the normally recognized bank of a water is left in its natural state as a buffer strip. As to those lands subdivided prior to January 1, 1985, the governing board shall, in cases of extreme hardship, issue works of the district development permits with exceptions to the conditions listed in Rule 40B-4.3030(4)(a) through (c). The 75-foot setback in paragraphs (a) through (d) above shall be considered a minimum depth for an undisturbed buffer. The limitations on disturbance and clearing within the buffer as set out in paragraphs through (d) above shall apply, and any runoff through the buffer shall be maintained as unchannelized sheet flow. The actual depth of the setback and buffer for any land use other than single-family residential development, agriculture, or forestry shall be calculated in accordance with the methodology in: "Urban Hydrology for Small Watersheds", U.S. Department of Agriculture, Soil Conservation Service, Engineering Division, Technical Release 55, June 1986; and, "Buffer Zone Study for Suwannee River Water Management District", Dames and Moore, September 8, 1988, such that the post-development composite curve number for any one-acre area within the encroachment line does not exceed; a value of 46 for areas within the encroachment line with predominantly Class A soils; a value of 65 for areas within the encroachment line with predominantly Class B soils; a value of 77 for areas within the encroachment line with predominantly Class C soils; or a value of 82 for areas within the encroachment line with predominantly Class D soils. (emphasis supplied) Rule 40B-4.3040, Florida Administrative Code, reads as follows: Unlawful Use of Works of the District. It shall be unlawful to connect with, place a structure in or across, or otherwise cause development to occur in a work of the district without a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause an unpermitted development to be removed or permitted. It shall be unlawful for any permitted use to violate the provisions of Chapter 373, Florida Statutes, or this chapter, or the limiting conditions of a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause the unpermitted use to be removed or brought into compliance with Chapter 373, Florida Statutes, and this chapter. Damage to works of the district resulting from violations specified in Rule 40B-4.3040(1) and (2) above shall be repaired by the violator to the satisfaction of the district. In lieu of making repairs, the violator may deposit with the district a sufficient sum to insure such repair. Rule 40B-400.103(1)(h), Florida Administrative Code, reads as follows: (1) In order to obtain a standard general, individual, or conceptual approval permit under this chapter or chapter 40B-4, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: * * * (h) Will not cause adverse impacts to a work of the District established pursuant to s. 373.086. . . . Facts Based Upon the Evidence of Record History of the rules Mr. David Fisk is Assistant Director of the District. At the time of the hearing, he had been employed there for 26 and one-half years. He played a significant role in the rule adoption process of the rules that are the subject of this dispute. As part of that process, the District entered into a consulting contract with an engineering, planning, and consulting firm and consulted with the U.S. Corps of Engineers and the Federal Emergency Management Agency (FEMA), to conduct what are described as the FEMA flood studies. Additionally, the district commissioned an aerial photography consultant who provided a series of rectified ortho photographs of the entire floodplain of the rivers within the District, and a surveying subcontractor who provided vertical control and survey cross sections and hydrographic surveys of the rivers. The District also worked in conjunction with the United States Geological Survey to accumulate all of the hydrologic record available on flooding. The information was given to the U.S. Army Corps of Engineers who, operating under FEMA guidelines for conducting flood insurance rate studies, performed the analytical and computer modeling work to identify the flood plains and floodway boundaries. The District used the amassed knowledge of maps, cross sections and surveys that were developed as part of the FEMA flood studies as technical evidence or support for the adoption of the works of the district rules. Following a series of public workshops and public hearings in 1985, the rules were adopted and became effective in 1986. None of the rules were challenged in their proposed state. The District adopted the floodways of the Suwannee, Santa Fe, Alapaha, Aucilla, and Withlacoochee Rivers as works of the district. According to Mr. Fisk, the District adopted the rules pursuant to Section 373.086, Florida Statutes, which provided authority to the District to adopt district works and Section 373.085, Florida Statutes, which provided authority to regulate activities within those works. The Floodway Line Petitioner hired Mr. John Barnard, a professional civil engineer, with extensive environmental permitting experience, to look at the floodway and floodplain issues associated with Petitioner's site and project. Mr. Barnard conducted an engineering study entitled, "Floodplain Evaluation." It was Mr. Barnard's opinion that FEMA's determination of the floodway line was less than precise. Mr. Barnard used FEMA's data regarding the base flood elevation but manually changed the encroachment factor resulting in his placement of the floodway line in a different location than determined by FEMA. Mr. Barnard acknowledged that different engineers using different encroachment factors would reach different conclusions.1/ Respondent's expert in hydrology and hydraulic engineering, Brett Cunningham, noted that the definition of floodway in Rule 40B-4.1020(12), Florida Administrative Code, is essentially the same definition that used is in the FEMA regulations and which also is commonly used across the country in environmental rules and regulations. Mr. Barnard also acknowledged that the District's definition of "floodway", as found in Rule 40B-4.1020(12), Florida Administrative Code, is fairly commonly used by environmental regulatory agencies. Moreover, it was Mr. Cunningham's opinion that the Alapaha River is a stream or watercourse within the meaning of the rule and its floodway an accompanying land. In Mr. Cunningham's opinion, the FEMA flood insurance studies are widely used across the country for a variety of reasons and are typically relied upon by hydrologists and engineers to locate floodways. The definition of "works of the district" in Rule 40B-1020(30), Florida Administrative Code, is taken directly from the language found in Section 373.019(23), Florida Statutes. The statutory definition includes express references to streams and other watercourses, together with the appurtenant facilities and accompanying lands. Petitioner alleges that the phrase "will not cause adverse impact to a work of the SRWMD" as found in Rule 40B- 400.103(1)(h) is not clear because it does not identify what specific adverse impacts are being reviewed. While Petitioner's expert, Mr. Price, was not clear as to what the phrase means, Respondent's expert, Mr. Cunningham, understood the meaning of the phrase and noted that "adverse impact" is a phrase which is very commonplace in the rules and regulations of environmental agencies and is attributed a commonsense definition. The expert engineers differed in their opinions as to the meaning of the term "potential for reducing floodway conveyance" as used in Rule 40B-4.2030(4), Florida Administrative Code. According to Petitioner's expert engineer, Mr. Barnard, "potential for reducing floodway conveyance" is not a specific term that is open to interpretation as an engineer, and that he cannot quantify what constitutes "potential." Respondent's expert, Mr. Cunningham, understood the meaning of the phrase to be any increase in floodway conveyance. It was his opinion that there was nothing about that phrase to cause confusion. Rule 40B-4.3030, Florida Administrative Code, addresses conditions for issuance of works of the district development permits. Petitioner's expert Mr. Price testified that there is no quantification to what constitutes an "increase in soil erosion" as referenced in subsection (2) and linked the reference of soil erosion to a 100-year flood event referenced in the same subsection. Mr. Cunningham was of the opinion that there is no need to quantify an increase in soil erosion in the rule. He noted that soil erosion is used in a common sense manner and that attempting to put a numerical limit on it is not practical and "it's not something that's done anywhere throughout the country. It's just not something that lends itself to easy quantification like flood stages do". Mr. Cunningham's opinion that the words and phrases which Petitioner asserts are vague are words of common usage and understanding to persons in the field is the more persuasive testimony. This opinion is also consistent with statutory construction used by courts which will be addressed in the conclusions of law.
The Issue Whether FDOT has provided reasonable assurances that the activities it proposes to conduct pursuant to proposed District SWM Permit Application No. 940606-10, WRM Permit Application No. 940606-2-D and modification to ROW Permit No. 2584 will comply with the relevant permit criteria set forth in Chapters 373 and 403, F.S., and applicable rules and criteria promulgated thereunder.
Findings Of Fact THE PARTIES Petitioner, 1000 Friends of Florida (1000 Friends), is a not-for-profit, tax exempt membership corporation, organized and existing under the laws of the State of Florida. The principal office of 1000 Friends is 926 East Park Avenue, Tallahassee, Florida 32314 and it also maintains an office at 3305 College Avenue, Ft. Lauderdale, Florida 33314. Petitioner, Florida Bay Initiative, Inc. (FBII), is an entity incorporated under the laws of Florida with its principal office located at 250 Australian Avenue South, Suite 500, West Palm Beach, Florida 33401. Petitioner, the Florida Keys Fishing Guides Association, is an association of sport fishing guides who live in the Florida Keys and is headquartered at 138 Royal Lane, Islamorada, Florida 33036. Petitioner, Michael Collins, is a private individual. His address is 138 Royal Lane, Islamorada, Florida 33036. Petitioner, Charles W. Causey, is a private individual. His address is Post Office Box 448, Islamorada, Florida 33036. Petitioner, the Florida Keys Concerned Citizens Coalition (FKCC), is a not-for-profit Florida corporation whose address is West Shore Drive, Big Pine Key, Florida 33043. Petitioner, AG Intus, Inc., filed a Notice of Voluntary Dismissal on August 9, 1996. DOAH Case 95-5524, the proceeding filed by Intus, was previously consolidated with the other cases to this proceeding. On August 12, 1996, the Intus case was severed from this proceeding and the Intus hearing cancelled. Respondent, the South Florida Water Management District (the District or SFWMD), is a public corporation in the State of Florida existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, F.S., and Title 40E, F.A.C., as a multi-purpose water management district, with its principle office in West Palm Beach, Florida. Respondent, the Florida Department of Transportation (FDOT), is an agency of the State of Florida. Its District Six address is 1000 N.W. 111th Avenue, Miami, Florida 33172. Intervenor, Monroe County, is a political subdivision of the State of Florida. For the purposes of this proceeding the address for Monroe County is c/o Apgar and Pelham, 909 East Park Avenue, Tallahassee, Florida 32301. The District, FDOT and Monroe County did not object to the standing of the Petitioners at the formal hearing and represented that they will not object to the standing in the event of an appeal. Based on the representations of the Respondents, the Petitioners were not required to put on a case as to their standing. THE THREE PERMIT APPLICATIONS FDOT has applied to the District for a Wetland Resource Management (WRM) permit, a Surface Water Management (SWM) permit, and a Right of Way (ROW) occupancy permit. On June 6, 1994, the Applicant submitted applications for surface water management and wetland resource management permits for the purpose of widening and modifying this 20.4 mile stretch of U.S. 1. The surface water management permit application is identified as Application No. 940606-10. The wetland resource management permit application is identified as Application No. 940606-2-D. On October 24, 1995, the District issued Staff Reports on Permit Application No. 960606-10 and Permit Application No. 94060-2-D. These Staff Reports recommended issuance of the permits subject to general and special conditions as specified therein. An addendum to the staff report was issued November 3, 1995. On September 27, 1994, the Applicant submitted a request to modify its existing ROW Occupancy Permit to enable it to replace the bridge where U.S. 1 crosses the C-111 Canal. The land encompassed by the ROW occupancy permit challenged in this proceeding is located in Section 16 and 17, Township 59 South, Range 39 East, Dade County, Florida. A draft right-of-way occupancy permit with standard limiting and special conditions was produced as part of a package that went to the Governing Board and others. The proposed authorization for use of the ROW is for the following: REMOVAL OF EXISTING U.S. HIGHWAY 1 BRIDGE AND REPLACEMENT WITH A NEW FIXED BRIDGE. PROJECT INCLUDES CONSTRUCTION OF A NEW SERVICE/ACCESS ROAD, 2 DETENTION PONDS, 2 CATCH BASINS, 2-15" R.C.P. OUTFALLS, BOAT RAMP WITH LOADING DOCK, PARKING AREA, PEDESTRIAN GATE AT S-197, FENCING AND WILDLIFE CROSSING ALL WITHIN THE NORTH AND SOUTH RIGHT OF WAY OF C-111 (STATION 938+00 - 955+00). The draft right-of-way occupancy permit modification, identified as “SFWMD PERMIT NO. MOD 2548," should correctly be identified at “SFWMD PERMIT NO. MOD 2584.” The numbers “8” and “4” were inadvertently transposed. STIPULATIONS AS TO APPLICABLE LAW The parties have accurately set forth the applicable permitting criteria and the appropriate Basis of Review in their prehearing stipulation. CRITERIA FOR ROW PERMIT Rule 40E-6.301, Florida Administrative Code, provides, in pertinent part, as follows: In determining whether an occupancy permit should be issued, the District shall consider whether the proposed activity: interferes with the present or future construction, alteration, operation or maintenance of the works of the District; is consistent with the policy and objectives of Chapter 373 F.S., the legislative declaration of policy contained in Section 373.016, F.S. and the state water policy, Chapter 17-40, F.A.C.; has an actual or potential negative impact upon environmentally sensitive areas, which include: wetlands; endangered or threatened species habitat; aquatic preserves; outstanding Florida waters; federal, state and privately owned parks and wildlife management areas; designated areas of critical state concern; lands purchased by federal, state and local governments for the purpose of environmental protection, water resource protection and esthetics; and lands which contain native terrestrial plant species in significant amounts. Environmentally sensitive areas include areas on and off- site that are affected by activities which occur on, or are initiated from, the District’s works; degrades water quality within the receiving water body or fails to meet the provisions of Ch. 373, F.S., the state water policy, and Ch. 40E, F.A.C.; involves a discharge of wastewater from a new wastewater source or an increased discharge from an existing wastewater source; will discharge debris or aquatic weeds into District lands or works or cause erosion or shoaling within the works of the District; is supported by financial assurances, which will ensure that the proposed activity will be conducted in accordance with Chapter 373, F.S., and Chapter 40E-6, F.A.C.; presents an increased liability risk to the District; meets the general and specific criteria in the Basis of Review which is incorporated by reference in Rule 40E- 6.091, F.A.C.; interferes with actual or potential public use of the District’s works or public, recreational or other facilities not within the District’s works; is consistent with local zoning and other private land uses in the area; interferes with the quality or quantity of a public or private water supply; meets applicable criteria in Chapters 40E-61 and 40E-62, F.A.C.; ROW occupancy permits typically have standard limiting conditions which are incorporated as part of the permit. The permit may also have special limiting conditions. CRITERIA FOR PERMITTING THE SWM SYSTEM Rule 40E-4.301(1), Florida Administrative Code, contains the following criteria that, at the times pertinent to this proceeding, were used by SFWMD in determining whether to permit a surface water management system: In order to obtain or modify a permit under this chapter, an applicant must give reasonable assurances that the surface water system: provides adequate flood protection and drainage, without causing over- drainage, will not cause adverse water quality and quantity impacts on receiving waters and adjacent lands regulated pursuant to Chapter 373, F.S., will not cause discharges which result in any violations, in surface waters of the state, of the standards and criteria of chapter 17-302, F.A.C., will not cause adverse on-site or off-site impacts on surface and groundwater levels and flows, including impacts to sources of water supply and wetland hydrology, will not cause adverse environmental impacts, can be effectively operated and maintained, will not adversely affect public health and safety, is consistent with the State Water Policy, chapter 17-40, F.A.C., for a DRI with a signed Preliminary Development Agreement with the Florida Department of Community Affairs, pursuant to section 380.06(8), F.S., provides a surface water management system for that portion of the site approval for development which is able to operate separately from the surface water management system for the balance of the project site and still meet applicable District criteria. meets any applicable basin criteria in chapter 40E-41, F.A.C., will not otherwise be harmful to the water resources of the District, will not interfere with the legal rights of others as defined in subsection 17-40.401(8), F.A.C., is not against public policy, will meet general and specific criteria in the document described in subsection 40E-4.091(1)(a), F.A.C., (0) will meet criteria for isolated wetlands, which are found in Appendix 7 of the document described in rule 40E- 4.091(1)(a), F.A.C., (p) will meet the criteria for above ground impoundments, which are found in Appendix 6 of the document described in rule 40E-4.091(1)(a), F.A.C. The SFWMD has adopted certain procedures and criteria contained in a document, referred to as “Basis of Review for Surface Water Management Permit Applications Within The South Florida Water Management District” (BOR). Subsection 40E-4.091(1)(a), F.A.C. incorporates this document by reference into Chapter 40E-4, F.A.C. The BOR is a document that is “described in subsection 40E-4.091(1)(a), F.A.C.,” within the meaning of Rule 40E-4.301(1), F.A.C. The BOR establishes a rebuttable presumption that water quality criteria are met through specified volumetric retention and detention requirements. These performance based criteria are designed to be flexible. CRITERIA FOR THE WRM PERMIT In 1992 DEP entered into an Operating Agreement with the District, which delegated to the District responsibility for issuing wetland resource management (WRM) permits, which are required for dredge and fill activities in wetlands. Both DEP and the District implement the same wetland resource permit and MSSW permit rules. The District agrees with DEP's interpretation and application of the WRM permitting rules and non-rule policy, and applies the same when issuing such permits. Section 403.918, Florida Statutes (1991), provides the pertinent criteria that must be applied by the District in determining whether to grant or deny the WRM permit. That criteria requires the applicant to provide reasonable assurance that water quality standards will not be violated. In addition, for projects in OFW, the applicant must provide reasonable assurance that the project is clearly in the public interest. THE PUBLIC INTEREST TEST The District is required to balance the following criteria, found at Section 403.918(2)(a), Florida Statutes (1991), in determining whether a project is clearly within the public interest: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. MITIGATION If the applicant is unable to otherwise meet the public interest test, the District shall, pursuant to Section 403.918(2)(b), Florida Statutes, “consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project . . .” The District thereafter re-evaluates the project to determine whether the project, as mitigated, meets the public interest test. The criteria for mitigation is found in Chapters 373 and 403, Florida Statutes, Title 40 E (including the Basis of Review) and Rule 62-312, Florida Administrative Code. Rule 62-312.330, Florida Administrative Code, states the general criteria for evaluating mitigation proposals as follows: The goal of the mitigation proposal shall be to offset the expected adverse impact of the project that have resulted in the project being deemed unpermittable such that the resulting project with mitigation is not contrary to the public interest or, in the case of Outstanding Florida Waters, is clearly in the public interest. Each project must be separately evaluated to determine whether the proposed mitigation is sufficient. Rule 62-312.340, Florida Administrative Code, provides guidelines that are to be used in evaluating proposed mitigation projects. GENERAL DESCRIPTION OF THE PROJECT AREA FDOT proposes to widen a 20.4 mile portion of U.S. 1 in southern Dade County and northern Monroe County. Approximately seven miles of the project area is in Monroe County and approximately thirteen miles is in Dade County. The northern terminus of the project is the intersection of U.S. 1 and Card Sound Road, which is located in Dade County south of Florida City. The southern terminus of the project is the intersection of U.S. 1 and Abaco Road on Key Largo in Monroe County. The corridor of the proposed project passes through Sections 6, 7, 16, 18, 21, 27, 28, Township 59 South, Range 39 East; Sections 24, 25, 36, Township 58 South, Range 38 East; Sections 16, 19, 30, 31, Township 58 South, Range 39 East, Sections 16, 30, 31, Township 60 South, Range 40 East; Sections 25, 26, Township 60 South, Ranges 39 East, Dade and Monroe Counties, Florida. U.S. 1 is the main highway between northern Monroe County and southern Dade County. The only other road between Monroe County and Dade County is Card Sound Road. The Florida Keys is designated as an Area of Critical State Concern, pursuant to Section 380.0552, Florida Statutes. The Dade County portion of the road, north of the C- 111 canal, lies within typical Everglades habitat, which is classified as environmentally protected lands of Dade County. Most of the project corridor in Dade County is part of or adjacent to the Everglades National Park. Valuable wetlands exist throughout the project corridor. The following bodies of water will receive discharges if the surface water management system is permitted: C-111 Canal, Jewfish Creek, Lake Surprise, Blackwater Sound, Barnes Sound, Little Blackwater Sound, Long Sound, Manatee Bay, Sarge Lake, andManatee Creek. The receiving bodies of water are Outstanding Florida Waters (OFWs) or are connected to OFWs. THE EXISTING ROADWAY As it presently exists in the project area, U.S. 1 is a two lane undivided highway with two passing zones that are each one mile in length. Each travel lane on the existing facility is twelve feet wide. The existing shoulder on either side of the road consists of four feet of pavement and six feet of grassed area. FDOT Exhibit 7 accurately depicts the existing roadway typical section. Exotic vegetation, generally limited to the areas immediately adjacent to the highway, exist throughout the project corridor. These exotic species are present because FDOT has failed to properly maintain its right of way. A clear zone is an unobstructed area that includes the shoulder of the roadway and typically extends beyond the shoulder. The purpose of the clear zone is to provide a driver who has lost control of his or her vehicle a sufficient clear recovery area to regain control of the vehicle so that it can be maneuvered back onto the road. The clear zone for the existing road is inadequate to provide a safe recovery area. There is at present a two lane bridge over Manatee Creek, a two-lane bridge crossing the C-111 Canal, a bascule bridge, which is a drawbridge, over Jewfish Creek, and a two lane causeway through Lake Surprise. The two existing passing zones are located in Dade County. The first is south of U.S. 1’s intersection with the C-111 canal between mile markers 113-115. The second passing lane is approximately four miles south of the northern terminus of the project between mile markers 120-122. Each existing passing zone is undivided and consists of two northbound lanes and two southbound lanes, with each travel lane being twelve feet in width. The shoulders in the passing zones are the same as for the typical section. A surface water management (SWM) system is defined by Rule 40E-4.021(5), Florida Administrative Code , as being "the collection of devices, improvements or natural systems whereby surface waters are controlled, impounded, or obstructed.". There is no surface water management system presently associated with the road. The roadbed is elevated approximately five feet above mean sea level according to the National Geodetic Vertical Datum and was constructed on the old railroad bed of the Florida East Coast Railroad. No hydrologic culverts have been placed within the roadbed. Consequently, surface water flow between the eastern and western sides of the road north of the C-111 Canal has been cut off. C-109 AND C-111 CANALS In the 1960's, the C-109 and C-111 canals were constructed as part of an overall water management system in the area. As a result of the roadbed and the canals, water has been impounded on the western side of U.S. 1 at a level higher than on the eastern side. Due to cutoff of waterflow by the roadbed embankment, historic freshwater flow between the eastern and western sides of the project area has been restricted, which has resulted in an adverse impact on the Everglades ecosystem north of the C-111 Canal. The restricted water flow has resulted in less fresh water being available for shorter periods of time. Consequently, aquatic life has had reduced opportunities to develop. The restricted flow also has impeded the ability of aquatic life to reach freshwater areas during times of drought. On the east side of the road marine conditions have displaced what naturally should be freshwater conditions. PROJECT HISTORY While FDOT has been aware of traffic safety and hurricane evacuations concerns on the roadway for a long time, the current project originated in 1986 when Monroe County identified this project as a need in its 1986 Comprehensive Plan. Pursuant to agency practice, the proposed project was incorporated into FDOT's five year work program and a study was performed pursuant to FDOT’s Project Development and Environment (PD&E) Manual. FDOT's PD&E manual describes the process by which FDOT determines whether to construct or improve a road. The PD&E process includes an Environmental Impact Statement (EIS) to analyze existing conditions, assess the need for improvement, and develop alternatives. A Draft EIS is performed and circulated for comment to governmental agencies and the public. Based upon comments and further review a Final EIS is prepared. Metric Engineering ("Metric") began the PD&E study of the project in 1988 pursuant to a contract with FDOT. Metric identified seven factors which it concluded supported the need for the project. First, the improved corridor would improve the linkage between the four lane road at the northern terminus and the four lane road at the southern terminus. Second, the project would improve navigation by replacing the existing bascule bridge at Jewfish Creek. Third, the project would improve the level of service for the road. Fourth, the project would improve the safety of the road. Fifth, the project would improve the clearance time for hurricane evacuation. Sixth, the project was consistent with the long range transportation plans adopted by Monroe County. Seventh, the project would accommodate increased traffic, which can be expected with or without the project. Based on the needs evaluation, Metric performed a corridor analysis to determine the best way to get from Florida City to Key Largo, including improving only Card Sound Road, improving only U.S. 1, or improving a combination of the two. Metric concluded that the best resolution was to improve the project corridor. Metric also analyzed various alternatives in an effort to reduce the size of the typical section of the roadway in the U.S. 1 corridor and thereby minimize environmental impacts of the project. Because of concerns from Everglades National Park that no aspects of the project construction occur within its boundaries, FDOT agreed to conduct all construction east of FDOT's existing right of way line. The conclusions of the Metric studies were memorialized in a Final EIS and Final Engineering Report published in 1992. Conclusions regarding alternatives and project needs were then incorporated into the permit application and have continued to be updated. The 1992 version of the project was for a four lane roadway with four lane bridges throughout the project corridor. Subsequent to its June 6, 1994, permit applications to the District for a four lane roadway, FDOT went through an extensive process of providing the District with additional information in an effort to provide the District with the necessary reasonable assurance that the proposed project would comply with the permit criteria. The final series of modifications contained the three lane alternative, which will be described in detail below and is now the subject of this proceeding. The three lane proposal is a compromise that FDOT agreed to in an effort to minimize the direct, secondary, and cumulative impacts of the project. Monroe County passed Resolution No. 315-1995 on September 7, 1995, asking FDOT to build a three-lane road on a four-lane embankment. This resolution provided, in part, that “. . . Monroe County finds that the '3-lane alternative' as described in the Statement of Agency Commitments is the most viable proposal of those considered, because it balances the needs for a widened highway with safeguards designed to address secondary impacts.” The secondary impacts referred to in the resolution included concerns that two southbound lanes would result in more growth. The rationale behind the resolution was that more growth would result from two southbound lanes than from one southbound lane with the proposed passing zones. In response to the request of Monroe County and in response to a similar request made by the District, FDOT notified the District by letter dated September 5, 1996 of FDOT's decision to redesign the project to change the roadway from four to three lanes. FDOT HAS MINIMIZED THE IMPACTS OF THE PROJECT During the PD&E process prior to permit application FDOT studied project needs and alternative alignments, and conducted corridor analyses. FDOT originally considered a proposal that included approximately 250 acres of wetlands impacts. At the District's suggestion, FDOT revised its proposal prior to the permit application to reduce the wetland impacts and project footprint. The application submitted contained approximately 165 acres of impact. FDOT changed the typical section of the proposed roadway again after substantial interagency coordination in an effort to reduce wetlands impacts even further. FDOT agreed to reduce the footprint by changing the design of the median from 22 feet and a Jersey barrier (which is a minimum barrier) to 20 feet with a tri-beam rail barrier. The more substantial barrier was added because the median was narrowed. Additionally, instead of ten-foot paved shoulders on each side of the median, FDOT would use two-foot paved shoulders with sixteen feet of grass in the middle. These minimization efforts resulted in a wetland impacts decrease from 164 acres to 149.07 acres, the current impact of the project. Avoidance, or choosing alternate routes to avoid impacts to wetlands, was not a possible option because only wetlands and open waters exist between the northern and southern terminus of the project. FDOT explored all reasonable alternatives to the proposed project, including a two lane alternative proposed by a consultant for FBII. As discussed below, FDOT did not adopt the two-lane alternative, because the alternative did not address all of FDOT's identified needs for the project. FBII prepared a report with a two-lane alternative to the proposed project. FBII's original proposal included one 12-foot northbound lane with a 10-foot paved shoulder covered with thermoplastic rumble strips to deter vehicular use of the shoulder. In the southbound direction, FBII proposed a 12-foot travel lane with a 4-foot paved shoulder, essentially the same as currently exists. That proposal was analyzed by Metric Engineering on behalf of FDOT. FDOT rejected the FBII alternative for several reasons. First, though the 10-foot northbound shoulder theoretically may be used by cars during hurricane evacuation, removal of the rumble strips would be impractical due to lack of time to do so under threat of a hurricane, and due to the costs involved. It would be unrealistic to require people to otherwise drive over the rumble strips, without removal, because they are designed to prevent such access. Using the 10-foot shoulder during an evacuation would result in there being no shoulder area to remove accident vehicles from the roadway which would otherwise threaten to restrict the flow of traffic or cease it altogether. The reduced width of the shoulder lane below the standard 12-foot lane would also decrease the flow of evacuees. FBII's proposal for a two-lane fixed-height bridge at Jewfish Creek would not completely eliminate rear-end collisions at the bridge. The two-lane alternative proposed by FBII is not a signed and sealed cross section. The proposal by FBII does not include the area necessary for a SWM system or for clear zones. FBII did not do an analysis to determine whether its proposal complies with pertinent FDOT roadway and traffic design standards or with pertinent highway safety and improvement standards. The FBII proposal does not account for removal of the Lake Surprise causeway or construction related impacts from barge traffic. FBII did not do a wetlands survey to determine the impact of its two-lane proposal. At the Final Hearing, Petitioners presented for the first time a new proposal to use "flexible diverters" to pave a third northbound lane and to block that lane from travel traffic with poles. However, no research was conducted into the feasibility of such a proposal, nor was it adequately thought out. Such a use of "flexible diverters" is unprecedented in FDOT's history, is impractical to implement, and would violate FDOT's design standards contained in its Manual on Uniform Traffic Control Devices. Petitioners also presented for the first time at the Final Hearing a proposal to add an 8 to 10 foot paved northbound shoulder which could be converted to a travel lane with traffic control cones in the event of an evacuation. This plan is also not feasible, because the resulting lanes would not be wide enough to safely accommodate evacuating traffic, and because the contradiction between existing road striping and the placement of cones would likely cause accidents, which would halt evacuation. The proposals submitted by FBII do not sufficiently improve hurricane evacuation or traffic safety and, consequently, are not acceptable alternatives to the project. FDOT can do nothing else to minimize the impacts of the project and still address the needs for the project. Minimization of wetlands impacts was accomplished to the greatest extent possible. FDOT has proposed mitigation to offset the impacts that could not be avoided. THE PROPOSED PROJECT - IN GENERAL STIPULATION AS TO DESIGN AND CONSTRUCTION Petitioners stipulated that the design and construction specifications of the roadway proposed to be permitted in this case comply with all applicable design and construction standards for structural integrity, and adequately describe the three-lane divided roadway proposed to be constructed on a four-lane roadbed/embankment. PROPOSED LANES, SHOULDERS, AND MEDIAN FDOT proposes to widen the roadway in the project area to a three lane divided roadway with two northbound lanes and one southbound lane, plus three passing zones. The proposed project will be constructed on a four lane roadbed embankment. FDOT does not presently have plans to add the fourth lane to this roadway. FDOT Exhibit 8 contains an accurate description of the proposed typical section of the roadway. The typical section will consist of two twelve-foot northbound lanes with a six-foot paved shoulder and a four foot stabilized area adjacent to the paved shoulder; a twenty-foot median consisting of a two-foot paved shoulder, sixteen feet of grass and a tri-beam guardrail in the middle as a separator; and one twelve-foot southbound lane with an eight-foot paved shoulder. The proposed typical section also includes a storm water management system that will be described in more detail below. The proposed typical section includes a clear zone thirty feet in width, which is adequate. THE THREE PASSING ZONES The existing passing zone located in Dade County between mile markers 113 and 115 is one mile in length. FDOT proposes to alter this passing zone to 1.44 miles in length. The existing passing zone located in Dade County between mile markers 120 and 122 is also one mile in length. FDOT proposes to alter this passing zone to 2 miles in length. In addition, FDOT proposes to construct a 1.5 mile long passing zone between mile markers 110 and 112 in Monroe County. If permitted, the proposed project will include 2 passing zones in Dade County and 1 passing zone in Monroe County, for a total of 3 passing zones. The total length of the passing zones will equal 4.94 miles. ELEVATION There are no plans to change the elevation of the existing roadway. HYDROLOGIC CULVERTS The project contemplates the construction of 25 hydrologic culverts north of the C-111 Canal. These culverts will remain capped until further hydrological studies are completed and input from all concerned regulatory agencies can be obtained. It has not yet been determined how these culverts will be utilized to maximize the improvement to the ecosystem north of the C-111 Canal. WILDLIFE CROSSINGS INCLUDING THE C-111 BRIDGE The project contemplates the construction of three wildlife crossings north of the C-111 Canal in Dade County with fencing designed to funnel wildlife through the crossing. These crossing, sometimes referred to in the record as “panther crossings” are located between mile markers 118-119, 122-123, and 126-127 and will be constructed as overland bridges. In addition, the replacement bridge over the C-111 Canal (located between mile markers 116-117 in Dade County) is intended to serve as a wildlife crossing and will also employ fencing to funnel wildlife through the crossing. All four of these structures will be constructed as four-lane bridges, but will be striped for three lanes with rumble strips on the southbound fourth lane to discourage vehicular traffic in that lane. There will be an eight foot outside shoulder. FDOT proposes to construct 18 culverts south of the C-111 Canal for crossings by crocodiles, alligators, manatees, and other wildlife. These crossings will consist of 15 box culverts and 3 bridges. MANATEE CREEK BRIDGE The proposed bridge at Manatee Creek would be constructed as a four lane bridge, but would be striped for three lanes with rumble strips on the southbound fourth lane to discourage vehicular travel in that lane. There would be an eight foot outside shoulder. BRIDGING JEWFISH CREEK AND LAKE SURPRISE Jewfish Creek, which is part of the Intracoastal Waterway, and Lake Surprise would be bridged by a continuous structure. The Jewfish Creek bascule bridge would be replaced by a high-level four-lane fixed bridge. The Lake Surprise causeway would be replaced by a low-level four-lane bridge. The total distance for this bridging is approximately 2.35 miles. AREA OF PROJECT THAT WILL BE OPERATED WITH FOUR-LANES The three passing lanes (4.94 miles) and the bridge over Jewfish Creek and Lake Surprise (2.35 miles) would be operated with four lanes. Those areas total 7.29 miles of the 20.4 mile project corridor. Approximately 43 percent of the proposed roadway would have four lanes of pavement. Excluding the areas where the fourth lane will be blocked from travel with rumble strips, only 35 percent of the completed project will contain four travel lanes. This area consists of the three passing zones and the bridges over Jewfish Creek and Lake Surprise. THE PROPOSED SWM SYSTEM The proposed project would provide for a SWM system consisting of inlets, culverts, swales, berms and dry/wet retention areas. For the typical roadway section, runoff from the paved roadway surfaces will be directed to roadside swales designed to provide retention for 50 percent of 2.5 inches times the impervious area. The SWM system for the bridges will collect runoff in inlets and culverts and direct it to either swales or dry or wet retention ponds. The berms of the SWM system provide additional protection by restricting spills of pollutants, such as petroleum from overturned tankers or other vehicle accidents, from running into the surrounding waters. The berms and swales of the SWM are designed to catch pollutants and prevent their discharge into the surrounding waters. FDOT Exhibit 18 consists of four separate drainage reports submitted to the District in 1995 in connection with the project, one report for each section of the project. The reports accurately document the drainage calculations, the drainage design, the rationale behind the drainage design, and compliance of the design with the laws and regulations of the permitting agencies for the original four-lane proposal. On or about September 5, 1995, FDOT submitted revised drainage calculations to the District, determining the amount of stormwater treatment for the three-lane project. The revised calculations established that at least 95% percent of all stormwater runoff from the project would be captured in the proposed SWM system. Because the swale design was based on the originally proposed four-lane road, retention will be in excess of the required volume for most sections of the roadway. The required retention volume for this project is approximately 166 percent of what is required by the BOR. The surface and subsurface geology of the roadway consists of Miami oolite limestone overlain with Perrine maral. Underlying this is Thompson formation, anastasia and Key Largo limestone. Based on these constituencies, the swales proposed by the SWM system would be effective in rapidly removing heavy metals and phosphorous. The revised calculations established that approximately five percent of the project area will not have a SWM system. These areas will not have a SWM system because properly-sized retention systems in those areas can not be constructed without causing a disproportionate, adverse impact to surrounding wetlands. FDOT has provided reasonable assurances that the proposed SWM system’s total water quality treatment exceeds the District's permitting requirements and provides sufficient treatment to exceed the BOR requirements. The water discharged from the proposed system would be of higher quality than that currently discharged, which is not treated. FDOT has provided reasonable assurances that the proposed SWM system complies with the permitting criteria found in Rule 40E.301(1)(a)-(p), Florida Administrative Code. The following findings are made as to that criteria. Rule 40E-4.301(1)(a), F.A.C. The parties stipulated that Rule 40E-4.301(1)(a), F.A.C., pertaining to flood protection and the adequacy of drainage, is not at issue in this proceeding. Rule 40E-4.301(1)(b), F.A.C. The quality of water being discharged from the SWM system will be of substantially higher quality than the existing discharges. Consequently, it is concluded that the system will not cause adverse water quality impacts within the meaning of Rule 40E-4.301(1)(b), F.A.C. In addition, the evidence established that there will likely be less water discharged from the roadway if the project is constructed because of the amounts of water that will likely be retained in the swales that are a part of the SWM systems. Rule 40E-4.301(1)(c), F.A.C. Because the receiving bodies of water are designated Outstanding Florida Waters, the District is required to apply the DEP's most stringent water quality requirements -- the antidegredation requirements for discharge to OFWs, to this project. Those standards will be discussed in more detail below. The evidence established that the proposed project will not violate those requirements. Rule 40E-4.301(1)(d), F.A.C. Impacts to sources of water are not at issue. The District reviewed the potential effect of the SWM system upon on-site and off-site impacts to surface or groundwater levels and flows. The evidence supports the District's conclusion that no adverse impacts will be caused. Petitioners failed to present any evidence on groundwater levels and flows. Consequently, it is found that the criteria found at Rule 40E-4.301(1)(d), F.A.C., has been satisfied. The 25 hydrologic culverts north of C-111 have the potential to re-establish historic surface water flow in the area. They were sized, based on rainstorm events, to help equalize water levels from one side of the road to the other. The culverts are capable of transferring water from west to east to assist in the historic restoration of flows. In order to assure the proper usage of the culverts, they will remain gated until the District develops a management plan in conjunction with other agencies. The District will determine the maintenance entity. The FKAA water main runs beneath this section of the road. As a result, there is no other more hydrologically efficient alternative for the placement of the culverts. The culverts would also provide a means for overwash from storm events, over the U.S. 1 roadbed, to flow back to its point of origin, stabilizing the roadbed and allowing release of the accumulated salt water. Rule 40E-4.301(1)(e), F.A.C. In addition to providing for a net improvement in water quality, the project will offset any adverse impacts through mitigation and other environmental enhancements for which no mitigation credits are being assigned, as described below. Rule 40E-4.301(1)(f), F.A.C. FDOT has a history of adequate maintenance of SWM systems, and has provided reasonable assurance that it has the staff and budget to comply with District operation and maintenance requirements. FDOT will also be able to comply with the District's requirements to control exotic plants and other foliage along project corridor. Rule 40E-4.301(1)(g), F.A.C. The SWM system will not adversely affect public health and safety. The dispute as to the public interest test focused more on the WRM permitting requirements. Findings as to the public interest test are discussed in more detail below. Rule 40E-4.301(1)(h), F.A.C. The evidence established that the SFM system is consistent with State Water Policy. Rule 40E-4.301(1)(i), F.A.C. This project does not pertain to a DRI and, consequently, this criteria is not applicable. Rule 40E-4.301(1)(j), F.A.C. There are no basin criteria applicable to this project. Rule 40E-4.301(1)(k), F.A.C. The evidence established that the SWM system will not be harmful to the water resources of the District. While there will be adverse environmental impacts caused by the project, those adverse impacts have, as will be discussed in more detail below, adequately offset by mitigation. Rule 40E-4.301(1)(l), F.A.C. This issue was not at issue in this proceeding. Rule 40E-4.301(1)(m), F.A.C. As will be discussed in greater detail in a subsequent section of this Recommended Order, the project is not against public policy. For the reasons set forth in that subsequent section, it is found that the project is clearly in the public interest. Rule 40E-4.301(1)(n), F.A.C. Rule 40E-4.091(1)(a), F.A.C., constitutes the BOR. As discussed in detail above, the SWM system complies with the BOR. Rule 40E-4.301(1)(o), F.A.C. There are no isolated wetlands pertaining to this project. Rule 40E-4.301(1)(p), F.A.C. There are no above ground impoundments, as described in Appendix 6 of the BOR, pertaining to this project. WATER QUALITY - DISCHARGES INTO OFW Because the project will involve discharges into Outstanding Florida Waters, it was necessary for FDOT to establish that the discharges from the SFW system will not degrade those OFWs. The evidence established that FDOT's proposed project complies with and exceeds applicable water quality standards and permitting criteria. There will be no significant degradation of ambient water quality as a result of the project. It is expected that there will be a net improvement in ambient water quality resulting from the proposed project, as opposed to the continued degradation if nothing is done to treat stormwater runoff. In FDOT Exhibit 46, FDOT provided baseline water quality data in the form of STORET data for waters adjacent to the project area. STORET is a centralized repository and database for water quality data throughout Florida. It is Florida's principal source of water quality data. STORET contains the best scientific database on water quality in Florida. The STORET data set forth in FDOT Exhibit 46 provided sufficient evidence on ambient water quality for the waters adjacent to the proposed project. In addition to providing the water quality data in FDOT Exhibit 46, FDOT is required by Special Permit Condition 37 to submit appropriate water quality data in the surrounding waters prior to any construction activities. SFWMD Exhibits 5 and 6 contain amendments to Proposed Agency Action made after the beginning of the formal hearing. These amendments include a requirement that an appropriate water quality monitoring plan be submitted within 30 days of the permit issuance. FDOT has provided reasonable assurances that water quality standards will be met and that there will be appropriate water quality monitoring during construction. DIRECT IMPACTS OF THE PROJECT The proposed roadway design will result in the following direct impacts to wetlands adjacent to the roadway corridor: 1) the dredging of 11,028 cubic yards of material from 2.1 acres, 2) the placement of 1,689,553 cubic yards over 147.0 acres of wetlands, and 3) 6.9 acres of (potential) permanent impact due to shading and 4.1 acres (potential) of temporary impacts from the Jewfish Creek Bridge construction activities to seagrass habitat. In order to determine the project's direct impacts, the area surrounding the project was surveyed to determine the number of affected acres. This was done by using a computer aided design ("CAD") system, and by categorizing the various forms of wetlands and associated flora and fauna into the following communities: mangrove, emergent freshwater, open water, and tidal, consisting of seagrass and non-vegetated bottoms. Using these categories and the CAD system, every square foot of direct impacts were accounted for. The adverse direct wetland and surface water impacts of this project are as follows: 1) 27.83 acres Non- Vegetated Tidal Bottom; 2) 11.27 acres Seagrasses; 3) 46.85 acres Mangroves; 4) 42.35 acres Sawgrass/Cattail/Spikerush; 5) 14.31 acres Shrub Wetlands; and 6) 6.46 acres Open Fresh Water; totaling 149.07 acres. Though some wetlands to be impacted may be of lesser quality, FDOT stipulated that all wetlands to be directly impacted by the project should be considered to be high quality wetlands for the purpose of mitigating the impacts. The impacted wetlands are part of larger wetland systems. Petitioners assert that the District should have required studies as to impacts as to the larger wetland systems. The evidence established that the District appropriately considered the type and location of the wetlands involved so that additional study suggested by Petitioners was unnecessary. Petitioners also assert that impacts to isolated wetlands should have been studied. The evidence established that there will be no such impacts. SECONDARY AND CUMULATIVE IMPACTS RECOGNIZED BY SFWMD In addition to the direct impacts of the project, the District is required to analyze secondary and cumulative impacts. A project's secondary impacts are those that, though outside of the project footprint, are very closely linked and causally related to the project. This is a "but for" test. Secondary impacts are those impacts which, if not for the proposed project, would not occur. Both positive and negative secondary impacts are considered. When there are both positive and negative secondary impacts caused by a project, the permitting agency must consider the severity of the impacts and balance these together with the other factors in the public interest test to determine whether or not the project is clearly in the public interest. WRM statutes, and DEP rules and policies pertaining to those statutes do not regulate growth or traffic increases, per se. Only if such increases are very closely linked and causally related to the project will they be considered. The District identified several secondary impacts that would be temporary in nature since they would occur while the project is being constructed. One is the use of a barge facility, primarily at Jewfish Creek, where the anchoring of the barge may result in temporary impacts to seagrass during construction. This impact is addressed by a component of the seagrass mitigation at Boca Chica, discussed below. Another impact is turbidity associated with the dredge and fill and the barge activities. That issue is appropriately addressed by permit conditions, through the use of turbidity control screens and other techniques. The District also identified secondary impacts directly associated with the project footprint that would be permanent in nature. The removal of the exotic vegetation potentially opens up the areas adjacent to the road north of the C-111 canal to off-road vehicles or four-wheel driving and the potential impacts caused by those vehicles. That impact is appropriately addressed by fencing north of the C-111 canal. When a road is widened, animals have a greater distance to travel back and forth from one side of the road to the other. A wider road exposes such animals to greater risk of being hit by a motor vehicle while crossing the road. That impact is addressed in this project by the fencing, the wildlife crossings, and the wildlife box culverts. The crossings are designed for large mammals and some species, such as the Indigo snake, will likely not use these crossings. The wildlife crossings will not entirely mimic the crossing patterns of all wildlife that need to cross U.S. 1 and will result in some wildlife habitat fragmentation. The fencing that will be erected to funnel wildlife through the crossings will fragment the habitat of some species by altering wildlife crossing patterns and blocking access of some species to certain areas of habitat. The greater weight of the evidence established that any habitat fragmentation should, when compared to existing conditions, be minimal. The District appropriately evaluated the advantages and disadvantages of using wildlife crossing and hydrological culverts and appropriately concluded that there would be a net benefit to wildlife as a result of their construction. The District properly concluded that the culverts, bridges and fencing located south of the C-111 canal, construction of wildlife crossings and fencing north of the C- 111 canal, construction of the hydrologic culverts, and removal of the Lake Surprise Causeway are positive secondary benefits of the project. These benefits should be considered when applying the public interest test. THE FKAA PIPELINE RELOCATION The project requires the relocation of two segments of the existing pipe owned by the Florida Keys Aqueduct Authority (FKAA) around Jewfish Creek Bridge. The segments total approximately 1.5 miles. The District inspected the area where the pipeline will be relocated to assist in determining its impact. The pipeline relocation is a temporary disturbance during construction. It is a small linear facility, which will not generate pollution in and of itself. The pipeline relocation is not expected to result in a violation of State water quality standards. The FKAA is responsible for obtaining the necessary permits for the relocation. Direct impacts to wetlands will occur in a 4 to 5 foot wide strip along the length of the relocated aqueduct. The FKAA has submitted a permit application to the DEP for a permit to relocate the aqueduct. DEP believes that adequate mitigation can be achieved to make the project permittable. Once the FKAA submits an adequate mitigation plan, then relocation of the aqueduct will not be an adverse secondary impact caused by the U.S. 1 project. The permit for the subject project should contain a condition that the FKAA obtain a permit for the relocation of these two segments of its pipeline. THE C-111 BOAT RAMP There is an existing boat ramp designed for small boats to access District canals that is located on the north side of the C-111 canal. As a result of the proposed project, it will be relocated to the southern side of the project. This relocation is a relatively minor project requiring a cut in the canal bank and a fourteen-foot wide slab for the boat ramp. When the District considered the potential impacts associated with this relocation in conjunction with the impact of the proposed project, it was determined to be a relatively insignificant impact in terms of the project as a whole. Relocation of the boat ramp is not expected to result in a violation of state water quality standards. All direct, cumulative, and secondary impacts, whether positive or negative, should be considered in balancing the public interest test. ARE THERE ADDITIONAL SECONDARY AND CUMULATIVE IMPACTS Petitioners assert that there are additional cumulative and secondary impacts that the District failed to consider. Petitioners argue that the project cannot meet permitting criteria if those additional impacts are considered. The additional impacts pertain to additional development throughout Monroe County because of the “rate of growth ordinance” (ROGO), additional development along the project corridor, impacts to the coral reefs of the Keys, impacts to Key Deer, generalized impacts, and impacts from increased number of “day trippers." For the reasons discussed below, it is found that the District has considered all appropriate direct, secondary, and cumulative impacts of the project. The additional impacts that Petitioners assert should have been considered are not causally connected or directly linked to the project. THE RATE OF GROWTH ORDINANCE Monroe County adopted its Year 2010 Comprehensive Plan (the "Plan") to meet the requirements of Chapter 163, F.S. The Plan, adopted May 15, 1993, is unusual in that the County limits future growth based on a carrying capacity analysis of its hurricane evacuation clearance time. No other jurisdiction in Florida, and few others in the United States, have used a carrying capacity planning approach. To implement the carrying capacity limitation, Monroe County determined the total number of dwelling units that could be permitted while maintaining an acceptable hurricane evacuation clearance time of 24 hours. This number of dwelling units, less an allowance for vested development and development in municipalities, was the basis for a ROGO that was adopted by the County in 1992. The ROGO allocates the available units at a uniform annual rate of growth (currently, 255 units per year). The ROGO regulates all proposed new residential buildings, including hotels, motels, and other transient tourist accommodations as well as permanent residences. The number of building permits that Monroe County can issue is, at present, directly related to how rapidly the County can be evacuated in the event of a hurricane. The lower the clearance time, the greater the number of permits that can be issued. The Comprehensive Plan requires that the County be able to evacuate within a 24-hour period. As of March 7, 1995, the hurricane evacuation time for Monroe County was determined to be 21.25 hours.1 The project is expected to reduce by six or seven hours the modeled hurricane evacuation capacity for Monroe County, regardless of whether it consists of three or four lanes. This is because both the three lane and four lane plans provide for two northbound lanes. Because of the rate of growth provisions in county law, this reduction of clearance times results directly in an increase in the number of building permits that the county can issue annually. Under ROGO, Monroe County can, with this project, issue 255 permits each year through the year 2026. Without this project, Monroe County can issue 255 permits each year only through the year 2001. Alternatively, without this project, the county can issue 88 permits each year through the year 2010 if it chooses to issue permits over a longer period of time. Following extensive litigation before the Division of Administrative Hearings in an unrelated proceeding2, the Administration Commission entered a final order on December 12, 1995, that approved approximately 97 percent of the Plan. In addition, the Administration Commission has published a proposed rule to bring the remainder of the Plan into compliance and assure its financial feasibility. The central feature of the proposed rule is a five- year work program, with annual reviews by the Administration Commission. It is likely that the proposed rule will eventually result in the complete revision of the ROGO. The proposed rule provides that Monroe County's annual rate of growth be revised within five years, no later than December 31, 2001, "to establish a rate of growth and a set of development standards that ensure that any and all new development does not exceed the capacity of the county's environment and marine systems." A carrying capacity study will comprehensively assess water quality, habitat protection, and public facility issues to determine the capacity of the Keys to sustain further development. The proposed project is but one of many factors that will be considered in future rate of growth regulations. If the expected revisions occur, it would be speculative to predict what development would be allowed. While the studies are underway the rate of growth will remain at 255 units per year. The rate of growth will be reviewed annually, and may be reduced a minimum of 20% if the goals of the studies are not being met. The DCA has determined that Monroe County’s Comprehensive Plan and its land development regulations are sufficient to prevent or mitigate any potential adverse secondary impacts of the project caused by development. The DCA has consistently supported the proposed project, even in its earlier four-lane configuration, because it was consistent with Monroe County's 1986 Comprehensive Plan, and because the project would improve hurricane evacuation clearance times and improve water quality in the vicinity of the roadway. The 1986 plan supported widening of the roadway to four lanes based on projected travel demand. The DCA prefers the current, three-lane proposal to the earlier four-lane. On September 7, 1995, the Monroe County Commission adopted Resolution 315-1995 in support of the proposed project because "it balances the needs for a widened highway with safeguards designed to address secondary impacts." Lorenzo Aghemo, an expert in comprehensive planning, served as Monroe County Planning Director during the development of the Plan and ROGO. In Mr. Aghemo's opinion, the widening of the roadway to either three or four lanes would generate minimal growth pressure in Monroe County, particularly because the Plan limits the rate of growth. Because the Keys are designated by Section 380.0552, F.S., as an area of critical state concern, the DCA is charged with oversight of Monroe County's Comprehensive Plan, its LDRs, and all development that takes place in Monroe County. Additionally, the Administration Commission may amend Monroe County's plan or regulations by rule (See Section 380.0552(9), F.S.). There is virtually no action that Monroe County can take related to the use of land without review and approval of a state agency. The Administration Commission’s proposed rule demonstrates its intent to revise comprehensively Monroe County's ROGO within five years to ensure that future development does not exceed the capacity of the Keys' environmental resources. It also demonstrates the Administration Commission's intention to closely monitor growth and development in the Keys during the five-year study period. Some of the studies required by the proposed rule are already underway: 1) the DCA has entered into a contract with the ACOE to complete the environmental carrying capacity study; 2) the HRS study of advanced on-site waste water treatment systems is underway; 3) Monroe County is developing the required Marathon central sewer facilities plan; and 4) Monroe County and HRS have begun the cesspit identification and elimination process. Caution should be exercised in relying on this or on any other proposed rule. Likewise, caution should be exercised in relying on changes to ROGO that may or may not occur. It is likely that the present status of the law will be changed in the near future so that future development will be based on environmental carrying capacity as opposed to hurricane evacuation clearance times. However, for the purposes of this proceeding the District should accept the fact that the issuance of future building permits is closely linked and causally related to the project. Consequently, it is found that under the present status of the law, the issuance of additional building permits in Monroe County is closely linked or causally related to the project. MONROE COUNTY LDRS AND DCA OVERSIGHT Although Petitioners established that there is a causal relation between the project and the existing status of the law governing the number of building permits that can issued in the future, the evidence was insufficient to establish at a level above speculation that adverse environmental impacts will result because of the issuance of those building permits. The Monroe County Comprehensive Plan contains land development regulations that govern all development in Monroe County. These regulations are among the most stringent in the State and are designed to avoid or minimize adverse environmental impacts caused by development. All development orders in Monroe County are closely scrutinized by the Department of Community Affairs to ensure compliance with applicable permitting criteria. Those regulations and the DCA’s close scrutiny are intervening factors that break any causal relation between the project and the speculative adverse environmental impacts that the Petitioners assert will be caused by future issuance of building permits by Monroe County. Petitioners failed to establish that the impacts of future development are very closely linked or causally related to the project. Consequently, it is found that such impacts are not secondary or cumulative impacts of the project. DEVELOPMENT ALONG THE PROJECT CORRIDOR A major portion of the area next to the road has little or no development potential because it is either water, land in public ownership, or land slated for public ownership. The areas east of the road are mostly in private ownership, but are primarily submerged lands and mangrove areas. The Crocodile Lakes National Wildlife Refuge is federally owned and is managed by the U.S. Fish and Wildlife Service (USFWS). The Southern Glades lands, located immediately west of the project and Everglades National Park (ENP) in Dade County, have been acquired by the District and are managed by the Florida Game and Freshwater fish Commission (FGFWFC). The Model Lands Basin in Dade County is in private ownership but proposed for public acquisition in the future. The land adjoining the roadway in Dade County is designated as open area or environmentally sensitive. Almost half of the land along Monroe County's portion of the roadway is in public ownership. At least 90% of the land in private ownership is mangroves or wetlands that cannot be developed. The small area of uplands is currently being used by a resort marina which will not be allowed to develop further under the new comprehensive plan. There is very little potential for future development in the project area. The comprehensive plan designation for areas in Dade County are open space, and the ones in Monroe County have the conservation designation. The District's regulatory programs consider areas adjacent to the project as sensitive wetland habitats. Based on the District's regulatory authority and comprehensive plan designation for those lands, which would have to be obtained prior to obtaining a permit for development, it is very unlikely that those lands could be developed. Florida Rock and Sand Co. (FRS) has a permit to mine approximately 1,100 acres of wetlands. As part of its mitigation program, FRS will donate this land to the District once its mining and mitigation projects are complete. The FRS mitigation lands are preserved as a permit condition and will ultimately be transferred to the District. This land will not be developed. In addition, the District established that the U.S. 1 project and the FRS project do not constitute a cumulative impact that the District failed to consider. The evidence established that development along the project corridor will not be a secondary or cumulative impact of the project. IMPACTS ON CORAL REEF SYSTEM The evidence was insufficient to establish a close link or causal connection between the project and the coral reef system. As reflected elsewhere, it is found that there will be no degradation of ambient water quality as a result of the project. Therefore, there is no need to resolve the conflicting testimony as to the present status of the coral reef system. IMPACT ON KEY DEER There are no key deer in the project area. The nearest key deer habitat, Big Pine Key, is approximately 70 miles from the southern terminus of the project. The evidence is insufficient to establish that there is a very closely linked and causally related connection between the project and key deer mortality on Big Pine Key. GENERALIZED IMPACTS The Petitioners presented certain opinion testimony that the Keys cannot be developed in an environmentally sensitive manner because of potential adverse impacts of new development in Monroe County, or new boats operating in the waters of the Florida Keys. The credibility of that testimony need not be evaluated because the evidence was not sufficient to tie those generalized concerns into the specific regulatory criteria of the permitting agency. There was insufficient evidence to establish that those alleged impacts would be very closely linked or causally related to the proposed project. DAY TRIPPERS Induced demand is new travel that occurs solely because additional capacity is added to a highway. Petitioners' transportation experts, Michael Replogle and Robert Morris, testified that FDOT's traffic studies, and FDOT's projected rate of traffic growth of approximately 3 percent annually, are incorrect because the studies do not predict the amount of "induced demand" that would result from the proposed project. Petitioners assert that induced demand would generate an unknown number of people who drive to the Keys for the day from south Dade County, referred to as “day trippers,” will have an impact on the Keys that has not been evaluated. The assertion that this potential impact has not been analyzed is rejected as being contrary to the greater weight of the evidence. Induced demand is accounted for in Monroe County's Long Range Transportation Plan, which was never evaluated by Mr. Replogle or Mr. Morris. The Long Range Transportation Plan was prepared by an experienced traffic engineering consulting firm, Barton-Aschman, using an FDOT- approved traffic demand model, the FSUTMS model, that includes all traffic generators and attractors, and all travel on U.S. 1 on weekdays and weekends. The FSUTMS model does not restrict demand based on the existing road capacity. The model uses an "unrestrained assignment" that incorporates the total predicted trip generation on recreational facilities, hotels, and all other attractors. The Long Range Traffic Plan was used to develop the Monroe County Comprehensive Plan, which takes into consideration the projected increases in traffic and makes appropriate provisions for those increases. FDOT has provided reasonable assurances that it has properly projected the amount of traffic for the project corridor after the project is completed and that the projected increases have been appropriately addressed by Monroe County's Comprehensive Plan. MITIGATION - IN GENERAL For the reasons discussed above, it is found that there are no secondary or cumulative impacts that the District failed to consider. Petitioners also contend that the mitigation proposal is insufficient to offset the direct and secondary impacts recognized by the District. This is a large dredge and fill project that will permanently fill 149 acres of wetlands. The wetlands that will be adversely impacted by the project include OFWs that provide a great variety of functions and serve as habitat for fish and wildlife, including threatened and endangered species. The wetlands are unique and of high quality. Mitigation for direct, secondary and cumulative impacts was considered as part of the permit evaluation. In- kind mitigation is considered to be most effective, but out- of-kind mitigation may be offered by the applicant where it is impractical to conduct in-kind mitigation due to historic changes in the project area or sensitivity of the habitat type for which mitigation is offered. Such mitigation is also appropriate to address regional alteration of an ecosystem, such as the Everglades ecosystem alteration caused by the original roadway embankment. FDOT developed a conceptual mitigation plan that took into account project impacts on the freshwater, marine and estuarine components of the ecosystems involved, as well as the impacts on threatened and endangered species of wildlife which may be affected by the project. FDOT coordinated the plan's development with the National Parks Service, U.S. Fish and Wildlife Service, the Army Corps of Engineers, the National Marine Fisheries Service, the U.S. Environmental Protection Agency, the Dade County Department of Environmental Resources Management, the Florida Game and Fresh Water Fish Commission, and the Florida Department of Environmental Protection. The conceptual mitigation plan evolved as a result of project modifications and agency comments into what is now proposed as mitigation for the project. The current proposal is summarized in FDOT Exhibit 26, consisting of Attachment H to FDOT's SWM and WRM permit applications. The timing of their construction falls into two general categories: mitigation previously permitted and concurrent mitigation. UPFRONT MITIGATION Typically, mitigation is done concurrently with project construction rather than prior to permit issuance. Mitigation is often done afterwards because of construction timing constraints. Here, FDOT applied for and, in May 1994 received, permits to conduct mitigation prior to applying for the permits at issue, with the understanding that performance of these activities does not require the District to issue permits for the proposed projects. A total of 385.22 acres of mitigation has already been completed. The applicant received 203.02 mitigation credits from the District on May 12, 1994, for several mitigation projects that the applicant proposes to apply to the proposed U.S. 1 widening project provided it is approved. Table 2 of Attachment H to FDOT Exhibit 26 sets forth the four mitigation projects that constitutes the up- front portion of the mitigation for the project. This table sets forth the acres mitigated, the conversion factor for the mitigation, and the resulting mitigation credit awarded. The four mitigation activities already authorized are: enhancement of the wetland habitat in the Harrison Tract located adjacent to Barnes Sound within the Crocodile Lakes National Wildlife Refuge on the north end of Key Largo (70.37 acres credit for 252.6 acres of restoration); removal of the spoil mounds on the eastern bank of the C-111 canal east of U.S. 1 located on the District’s ROW (10.65 acres credit); the back filling of the C-109 canal levee located on the District ROW within the Southern Glades Save Our River project (112.7 acres credit); and the removal of the roadside spoil mounds on the west side of U.S. 1 located between C-111 and the Dade Work Camp Road within the District’s Southern Glades Save Our Rivers Project (9.30 acres credit). The mitigation projects pertaining to the roadside spoil removal along U.S. 1, the backfill of the C-109 Canal, and the removal of spoil along the C-111 Canal are similar projects because they each involve existing deep ditches cut through wetlands. When these deep ditches were cut, the spoil material from the ditch was deposited alongside the ditch. This resulted in areas that were previously Everglades wetlands becoming spoil, supporting the growth of exotic species and, for the most part, not exhibiting wetland functions. FDOT is proceeding with the backfilling the C-109 canal located between mile markers 122.5 and 117, and removal of the corresponding spoil mounds created during construction of the C-109 canal. In connection with this mitigation, marsh areas, tree islands and deep water aquatic refugia have been restored. In this area, there has been considerable attraction of wildlife subsequent to restoration, including otters, alligators, and turtles, which could not previously use the habitat because the canal was too deep. Upon completion waterflow between the east and the west will be restored, and the area will be restored to a wetland habitat from its current uplands habitat type. Backfilling of the C-109 canal is part of an interagency effort with the ACOE to restore as closely as possible to natural conditions the flow of water in the C-111 watershed area. C-111 mitigation includes removal of roadside spoil along the C-111 canal to restore the natural condition of the area. The mitigation was devised in coordination with the National Maine Fisheries Service (NMFS), which required mitigation for non-vegetated habitat types. Restoration also includes preserving some spoil areas as islands to maintain habitat for endangered species of plants. When the C-111 spoil mounds are scraped down, the fill will not fill the whole ditch. The ditch will, therefore, be a bit more valuable but will not be completely restored to its former elevation. FDOT will also remove roadside spoil along the west side of U.S. 1, upon which exotic species of plants had grown, and returning the area to its original grade. The Harrison Tract is a known habitat and nesting area for American crocodiles. Its wetlands functions were altered or eliminated by prior development of the land by its original owners. Restoration includes regrading the area to restore its original wetlands functions, including habitat for young and adult crocodiles. FDOT's mitigation of the Harrison Tract also includes restoration of tidal flushing to increase contributions of nutrients and food sources to the surrounding tidal bay system. Crocodiles have been observed using the restored areas. FDOT has installed additional nesting berm habitat, basking habitat and shallow lagoon habitat to promote juvenile crocodile development. The District established that the credit awarded for this mitigation and the conversion ratios utilized for determining this credit were consistent with agency practice and its pertinent rules. FDOT was given a 1:1 credit ratio for areas involving full restoration of wetlands. In other portions of the Harrison Tract mitigation involving restoration of flushing to existing wetlands, FDOT was given not full credit, but credit based on the severity of limitation of the existing wetland functions. Based on this evaluation, mitigation credits were given in a range of a 3:1 ratio for restoration of severely disrupted or non-existent wetlands to a 20:1 ration for restoration of higher quality but not fully functional wetlands. FDOT is being awarded 70 mitigation credits for the 252 acres in the Harrison Tract that are being restored or enhanced. CONCURRENT MITIGATION Based on the mitigation ratios developed by the District, additional mitigation credits were required. Consequently, the project contemplates mitigation that will be undertaken concurrently with the construction of the project in addition to the upfront mitigation. FDOT proposes to earn these additional credits by projects involving creation and/or restoration of emergent vegetation, mangrove and seagrass habitats. FDOT’s proposal to mitigate mangrove impacts with "out of kind" mitigation of emergent vegetation habitats was viewed by the District as being necessary and appropriate because there were no sufficiently large areas of mangrove habitat suitable for restoration. Table 7 of Attachment H to FDOT Exhibit 26 sets forth the four mitigation projects that constitutes the concurrent portion of the mitigation for the project. This table sets forth the acres mitigated, the conversion factor for the mitigation, and the resulting mitigation credit awarded. In addition, the table references certain credit for the placement of the hydrological culverts. As will be discussed later, that credit was withdrawn at the formal hearing. The four mitigation activities that will constitute the concurrent portion of the mitigation plan are: the removal of the Lake Surprise causeway (2.90 acres credit); the scrape down of the Jewfish Bridge approaches (0.67 acres credit); the restoration of the FGFWFC road (10.34 acres credit); and the Boca Chica project (27.17 acres credit) The Lake Surprise Causeway removal mitigation involves 5.26 acres of on-site seagrass restoration and 0.54 acres of unvegetated bottom mitigation through the excavation of 52,220 cubic yards of material. Lake Surprise historically was a shallow tidal lake supporting seagrasses before a causeway was built across the lake over the seagrasses. FDOT proposes to remove the causeway and restore the previous elevation, after which it is anticipated that seagrasses that grow on the east side of the causeway will fully recruit naturally to the excavated area. Removing the Lake Surprise Causeway will establish 5.26 acres of seagrass, for which FDOT received 2.63 acres of on-site mitigation credit based on a 2:1 ratio. Through natural recruitment after removal of the causeway, there is a high likelihood that the entire 5.26 acres will recolonize with seagrass. FDOT minimized the seagrass impacts to the greatest extent possible. The mitigation credit pertaining to Lake Surprise does not include credit for the removal of the causeway itself. This awarded credit is for the restoration of seagrass areas. The mitigation pertaining to the Jewfish Creek Bridge approaches proposes the scrape down of 1.33 acres of existing fill to allow the area to become recolonized with mangroves. Boca Chica is located in southern Monroe County over one hundred miles from the southern terminus of the project. This site was chosen by FDOT as a site for seagrass mitigation project after FDOT reviewed several other potential sites. Two other sites were rejected. The area around the C- 111 canal was rejected because the land proposed for use was in private ownership. Several defunct marinas in Port Bougainville were rejected due to poor conditions not conducive to seagrass growth. Boca Chica was finally chosen as the site because it was a large enough area with light and hydrological flow conditions conducive to seagrass growth. The evidence establishes that the Boca Chica site is the most viable for seagrass mitigation. The seagrasses to be impacted at Lake Surprise are healthy and productive turtle grass, manatee grass and cuban shoalgrass. Turtle grass is considered an extremely valuable “climax community” of seagrasses which hold sediments in place, cleanse water quality, and forms the base of the food chain. It is valuable to sea turtles, manatees and recreationally important fish and shellfish. The cuban shoalgrass that will colonize at Boca Chica is a pioneer colonizer species that grows in disturbed areas. It is not as valuable to the marine system as turtle grass. The Boca Chica seagrass mitigation permit condition proposed to offset impacts to 11.27 acres of seagrass. This will involve the removal of 306 cubic yards of sediment and hydraulically dredging approximately 1,175 cubic yards of spoil material. The proposed permit conditions state that FDOT shall provide future maintenance of the culvert areas to maintain adequate flushing. FDOT will plant 25.92 acres of seagrasses to mitigate for the remaining 8.64 acres of impacts, for a mitigation ratio of 3:1. In addition, 8.46 acres of seagrass will be planted to mitigate for the barren bottom area that will be affected, and 1.62 additional acres will be planted to compensate for any unexpected impacts to Boca Chica based on the necessary improvements. Overall, there will be of 36 acres of seagrass mitigation by FDOT, for which FDOT is receiving 27.17 acres credit. FDOT will also increase the water flow between the east and west lagoons of Boca Chica, and maintain the culverts connecting the two sides, in order to further promote growth of seagrass therein. FDOT is responsible for 80% survival of each acre of seagrass mitigation, as well as monitoring once a year for five years. Based on historical data obtained from Boca Chica during past mitigation efforts, there is a high likelihood that the entire 36 acres of mitigation will survive, and that the remaining 74 acres of the Boca Chica lagoons will experience natural recruitment of seagrass as a result of FDOT's efforts. The FGFWFC access area was built by excavating a ditch, and putting fill on the wetlands and creating a dirt road bed. After the C-109 canal is backfilled, the access road will no longer be needed. The mitigation project will excavate the existing road bed, back fill it into the ditch, thereby recreating the wetlands that were there previously. FDOT will receive 10.34 mitigation credits based on a 1:1 ratio of acres restored. EVALUATION OF MITIGATION There is no mitigation in this permit for any wetland impact beyond the direct loss of the specific 149 acres that will be dredged or filled. Mitigation was provided only for the direct, footprint impacts of the project. None of the up front mitigation involves the creation of wetlands, which entails converting areas that were not previously wetlands or open water and turning them into wetlands. It will likely take between 20 and 50 years for the mitigation areas to achieve full functional value required by the South Florida Water Management District mitigation permit. In the interim, there will be a net loss of wetland functional value. With time, the proposed mitigation has a high likelihood of success. Based on FDOT's past successes in mitigation of construction-related impacts, FDOT is able to comply with permit conditions relating to best management practices associated with the construction of bridges and pilings and turbidity screens around road construction, as well as restoration of seagrasses and mangroves. Petitioners assert that the District erred in determining the credit to be given for the up-front portion of the mitigation. While it is true that the SFWMD Rules do not mention "up-front" mitigation, the District has the authority to consider all aspects of a mitigation project in weighing its relative value. Consulting engineering inspectors have been retained by FDOT to insure that all permitting requirements are met during mitigation and construction, and that the technical special provisions for protection of threatened and endangered species are complied with by FDOT. The proposed permits contain appropriate conditions that require FDOT to monitor and maintain the mitigation areas. FDOT will be responsible in perpetuity for maintaining the tidal flushing connection at the Boca Chica mitigation site. Special permit condition 6 to the SWM and WRM staff reports require wetland and upland monitoring. If wetland and upland monitoring or other information demonstrate that additional adverse impacts have occurred due to this project, FDOT would be required to offset the loss of any additional wetland impacts. MITIGATION IS APPROPRIATE The evidence established that the mitigation projects were fairly and appropriately reviewed by SFWMD and that the mitigation credits were fairly and appropriately awarded. The evidence also established that there is appropriate mitigation for the direct, secondary, and cumulative impacts of this project. ACTIVITIES NOT RECEIVING MITIGATION CREDIT Mitigation credits for the 25 hydrologic culverts north of C-111 were originally included in the permit staff reports. Those mitigation credits were removed in an addendum to the staff reports, introduced as District's Exhibits 5 and 6. These credits were not necessary to offset project impacts. After the staff report was issued, they became a point of contention by the Petitioners because they will not be utilized until a management plan is developed. Since they were not necessary to meet mitigation requirements, the credits were removed from this project. These credits were never included in the mitigation ratios for these permit applications. The addendum removed the 9.6 credits initially contemplated for the culverts. No credit has been awarded for the relocation of threatened and endangered species of plants, such as Joewood and Bay Cedar by FDOT from the C-111, C-109 and roadside spoil mitigation areas. These species have been relocated to tree islands constructed by FDOT on the mitigation sites, or to other areas that would not be impacted by the project. FDOT also was not given mitigation credits for: (1) the wildlife crossings and the fencing that will funnel wildlife through these crossings; (2) installation of pipe culverts north of the C-111 canal and bridges and box culverts south of C-111; and which, in addition to providing a corridor for aquatic species, will increase the tidal flushing of the area; (3) the removal of the Lake Surprise Causeway, which will restore historical hydrological flow between the eastern and western sides of Lake Surprise; (4) FDOT's commitment to improve and maintain the flushing of the west lagoon culverts in Boca Chica (mitigation is in the east lagoon); and (5) FDOT's contribution of $300,000 to assist Monroe County in performing a carrying capacity study for the County. Additionally, FDOT will preserve the Jewfish Creek Bridge abutment, which will be preserved for local historical purposes. FDOT will prepare the Jewfish Creek Bridge pilings for an artificial reef at Long Key during construction. THE PUBLIC INTEREST TEST It is appropriate for the SWFMD to consider, in balancing the public interest test, to consider traffic safety and hurricane evacuation.3 Because of FDOT's expertise in those areas, it is appropriate for the permitting agency to give great weight to highway safety concerns, including hurricane evacuation, presented by FDOT. The application of the public interest test does not involve consideration of non-environmental factors other than those expressly set forth in the statutes such as navigation or preservation of historical or archaeological resources. Specifically, aesthetics, quality of life, the potential for a project to cause increased crime, and school overcrowding are not properly considered within any of the seven factors contained in Section 403.918(2)(a), Florida Statutes (1991). The District concluded that the project is clearly in the public interest based upon consideration and balancing of the following factors: hurricane evacuation improvements, public safety improvements, a SWM system where no SWM system currently exists; wildlife crossings and fencing north of the C-111 canal where no such crossings or fencing currently exist; wildlife box culverts to accommodate crocodiles, alligators, manatees and marine life where no such culverts currently exist; and hydrologic culverts, which have the potential to assist in the restoration of hydrologic flows, and the mitigation projects, both upfront and concurrent. SECTION 403.918(2)(a), FLORIDA STATUTES Section 403.918(2)(a), Florida Statutes, requires the permitting agency to determine “[w]hether the project will adversely affect the public health, safety, or welfare or the property of others." The property of others is not at issue. As discussed below, the evidence clearly established that the project will greatly enhance the safety of the road during normal operations and facilitate evacuation in the event of a hurricane. There will be clear benefits to the public safety as a result of this project. As part of the PD&E process, FDOT, through Metric, prepared "A Safety Evaluation" of the existing roadway. The safety analysis was based on FDOT accident statistics for the years 1983-1988, as well as engineering review of the conditions causing the accidents. Specifically, FDOT based their safety analysis on the following: 1) calculation of the abnormally high accident rate on the roadway based on the rate quality control formula set forth in the FDOT Highway Safety Improvement Guidelines, and approved by the Federal Highway Administration; 2) copies of the actual crash reports filed with the Florida Division of Highway Safety and Motor Vehicles, which provided detail greater than that generally available through FDOT's own accident data reports, and which formed the basis of the collision diagram in the Safety Evaluation (FDOT Exhibits 36; and 3) and its August 1996 update thereto (FDOT Exhibit 41), on-site evaluation and review of the roadway to determine geometrics of the roadway, locations of driveway accesses and side roadways and the degrees at which roadways intersected. Metric prepared an update of the Safety Evaluation for the years 1989-1994, to determine the continuing validity of the Safety Evaluation, as well as to review alternative proposals to the original proposed roadway configuration. In preparing the update, the recent accident data (FDOT Exhibit 37) and the underlying research in the Safety Evaluation were used by Metric Engineering in reaching its conclusions. The Safety Evaluation performed by Metric in 1989 established high accident rates on the roadway based on a detailed segmental analysis of the roadway. In August of 1996, the Safety Evaluation was updated by Metric, which update confirmed the findings of the Safety Evaluation, and further stated that accident frequency on the Monroe County portion of the roadway exceeded the state average accident rate and the abnormally high accident rate for the years 1990 through 1994 (notwithstanding the rear-end accidents occurring at Jewfish Creek). Fatal accidents on the Dade County portion exceed the state average on the same stretch by 37 percent for the same years. The most severe accidents occur on the Dade County portion. The Monroe County portion of the roadway exceeds the statewide average in the abnormally high accident rate four out of the last five years that FDOT studied. The Dade County portion does not exceed the accident frequency or the number of accidents, but the fatality rate in Dade County is much higher than the state average. Presently an abnormally high accident rate exists in three locations along the project corridor, two of which are in the vicinity of the Jewfish Creek bridge. The third location is north of the bridge on Cross Key. Replacing the Jewfish Creek Bridge with the fixed-height bridge proposed by FDOT will substantially increase the safety on the project corridor. The District considered this to be an important positive element in the public interest balancing test. The existing 2:1 slopes of the roadway make it difficult for drivers to recover from running off the roadway, resulting in a greater frequency of this type of accident. Moreover, the existing clear zone is not large enough to overcome the 2:1 slope to allow safe recovery of errant vehicles. As a result, catastrophic crashes occur rather than safe recoveries. Also, as with hurricane evacuation discussed in the following section, actual accidents on the roadway prevent traffic from accessing or leaving the Keys, and also prevent emergency vehicles from rapidly accessing the Keys and a crash site. This occurs because there is little or no shoulder or clear zone along the sides of the road to allow emergency vehicles to efficiently access an accident site, and in the event of a severe, head-on type collision, the roadway is blocked off. U.S. 1 through the project corridor is regarded as so unsafe for travel that Monroe County law enforcement officials call it "death alley." There are many head-on collisions due to the two-lane, no-median alignment. Law enforcement is difficult and dangerous along the roadway, because it has very few areas wide enough to allow law enforcement officials to detain driving violators. It is also very dangerous, for the same reasons, for a driver to pull off the roadway with a broken-down vehicle. High rates of speed and impaired drivers contribute to the accident rates along the project corridor. The efforts of law enforcement to control speeders and drunk drivers is impeded since it is practically impossible for enforcement officers to turn their vehicles around to pursue violators without running a high risk of causing an accident on their own. The project would significantly improve safety on the roadway by reversing the problems identified in the this section, as well as the previous sections of this Recommended Order. The project would virtually eliminate head-on collisions which largely contribute to serious injuries and fatalities along the roadway. The project would also help eliminate problems with emergency vehicle access to accident sites and restoration of service in the event of accidents, and would increase the roadway's level of service as discussed below. Improved level of service was an additional need considered by FDOT during the PD&E process. While the District did not consider the traffic level of service by itself to be weighted as part of the positive public interest criteria in this project, the impacts of resulting congestion are relevant to the public interest consideration of traffic safety as discussed in the foregoing sections. Lower quality level of service, as presently exists on the roadway through level of service F, adversely affects the safety of the roadway. When traffic levels rise, driver frustration increases leading to drivers passing in no-passing zones and potentially resulting in head-on collisions and high-severity accidents. Additionally, due to the narrow shoulders of the existing roadway, accident vehicles pose a threat to and impede normal traffic flow on the roadway. The Highway Capacity Manual set the standards for traffic engineering and is used in all fifty states. The manual classifies the existing roadway as a two-lane arterial rural road. Applying the standards for measuring level of service for two-lane rural roads set forth in the Highway Capacity Manual, FDOT determined that the existing level of service on the roadway is E, which is a very poor level of service that does not meet the established standard of level of service C required by the Highway Capacity Manual. Monroe County uses a speed based method of calculating level of service. Using that method, the level of service for U.S. 1 is at an acceptable level. The parties disagree as to which method of calculating the level of service is appropriate. That conflict is resolved by finding that the method used by FDOT is the appropriate method because of its wide acceptance and long-term use. Traffic volume in the area of the southern terminus of the project is growing at a rate average annual rate of 3.07 percent. In the present condition of the roadway, level of service will degrade to F, or forced-flow conditions, by the year 2006. Even with the improvements proposed by FDOT, the level of service in the northbound direction would improve to level of service B, but the level of service in the southbound direction would remain at level of service D or E due to the single southbound land configuration. Hurricanes pose a serious threat to the safety and welfare of residents and visitors of the Keys. Monroe County is the most vulnerable hurricane-prone area in the United States because it is surrounded by tropical waters, land elevation is low throughout the islands, and the evacuation routes are limited to U.S. 1, an extended route that starts in Key West and runs to the mainland, and Card Sound Road. The greatest potential for loss of life during a hurricane in the Keys is from storm surge. Storm surge is a dome of water near the center of a hurricane which is created by the winds on the water's surface. In a category 3, 4 or 5 storm, the entire land mass in the path of the storm will be inundated. Because of the wind and storm surge associated with hurricanes, the best response to a hurricane warning in the Keys is to evacuate people to the mainland away from the water and the storm surge threat. Accordingly, Monroe County orders a mandatory evacuation in a category 3, 4, or 5 hurricane, and no shelters are opened. There is little or no disagreement as to the vulnerability of the Keys to hurricanes or as to the danger posed by a hurricane. There is disagreement as to whether the proposed project is needed for improved hurricane evacuation. The conflicting evidence in this regard is resolved by the following findings, which are based on the more credible, substantial evidence. The existing road does not have sufficient hurricane evacuation capacity to meet the present and projected future needs of Monroe County residents and visitors. In current hurricane evacuations, the two northbound lanes on U.S. 1 between mile marker 90 and 106 are split at Key Largo. Sixty percent of the traffic is directed up the northbound lane of U.S. 1; forty percent of the traffic is diverted onto the northbound lane of Card Sound Road. One southbound lane of U.S. 1 and Card Sound Road must remain open for emergency vehicles to reach an accident or a disabled vehicle, or to bring emergency supplies into the Keys. Improving the roadway is critical to the success of Monroe County's hurricane evacuation plan. FDOT relied on hurricane evacuation and needs modeling performed by Monroe County and the ACOE to confirm the need for improvements. All of the models used indicated that the project corridor is the controlling roadway segment for improving hurricane evacuation of the Keys. Additionally, FDOT relied on the Lewis Report of January 15, 1993, a study commissioned by the Governor of Florida. Recommendation No. 17 of the Lewis report recommends that FDOT expedite the design and construction of the project, which is viewed as being critical for increasing the rate of emergency evacuation. Dr. Robert Sheets, former director of the National Hurricane Center, testified that the failure to make improvements to the roadway would be "unconscionable." Dr. Sheets and Billy Wagner, the Director of Emergency Management for Monroe County, presented very compelling and very persuasive testimony that this project is essential for hurricane evacuation purposes. The proposed project is the minimum transportation improvement that will achieve a significant improvement in evacuation safety and clearance time. With the present two- lane configuration and narrow shoulders, evacuating traffic would be halted completely by a vehicle breakdown or an accident blocking one lane. Replacement of the Jewfish Creek Bridge will also facilitate the hurricane evacuation need for the project. In addition to improving the rate of evacuation, the project will make an evacuation safer. Emergency personnel cannot reach accidents on the roadway during an evacuation because, in certain segments, no roadbed exists adjacent to the northbound lane. A second northbound lane and wider road shoulders would enable disabled vehicles to be serviced and removed from the highway. The proposed changes to the road would improve emergency vehicles' access to an accident scene. The elevation of the roadway at Lake Surprise is so low that it can be flooded easily by a storm. The proposed project would replace the existing muck bed of the roadway with more stable material. The existing roadway is subject to settling and washout during storm events, which reduce the safety of the roadway itself and reduce the evacuation capacity of the roadway. If washout occurs, moving equipment to the islands for recovery efforts following a hurricane will be difficult or impossible. The proposed project will prevent erosion and reduce the effects of storm surge and wave action on the road during a hurricane. When the project has been completed, three lanes of evacuating traffic, two lanes from U. S. 1 and a third from Card Sound Road, will converge at Florida City. Representatives of FDOT, the Monroe County Sheriff's Department, the Florida Department of Law Enforcement and Monroe County Emergency Management have planned to manage the northbound traffic when it reaches Florida City during an evacuation. Several feasible alternatives exist, but additional planning is needed to prevent a monumental bottleneck at the northern terminus of the project. While it is clear that this project will not resolve all problems that exist as to hurricane evacuation, it is also clear that this project is essential to improve hurricane evacuation. SECTION 403.918(2)(a)2, FLORIDA STATUTES Section 403.918(2)(a)2, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect the conservation of fish and wildlife, including endangered species, or their habitats.” The District considered the effect of the direct loss of dredging and filling 149.07 acres of wetland. As set forth in previous sections, it is found that this loss will be offset by the mitigation. For use during construction of the project, FDOT will adhere to technical special provisions and special permit conditions 9 through 13 to protect manatees, crocodiles, alligators, indigo snakes, marine turtles, and valuable trees, palms and other wildlife, to minimize or preclude any impacts to those species. Additionally, any osprey nests around the Jewfish Creek Bridge area at the time of construction will be relocated by FDOT if necessary. As part of the development of the FEIS, as required by the Federal Highway Administration under the National Environmental Protection Act, FDOT obtained official letters of concurrence from the USFWS and NMFS that the project would cause no adverse impacts to endangered species under section 7 of the Endangered Species Act. That process also established the project's consistency with Florida Coastal Zone Management Program, as determined by the State Clearinghouse within the Office of the Governor, in coordination with DEP, the Department of National Resources and FGFWFC. The project also contains provisions to impact positively or enhance the conservation of fish and wildlife, including threatened or endangered species and their habitat, as described below. These were positive factors that further helped neutralize and offset the 149.07 acres of direct impacts. In addition, FDOT is required to evaluate the effectiveness of the fencing along the entire project corridor, discussed below, and report to the District on that effectiveness. If the District determines that the fencing could be more effective, it may require FDOT to implement those suggestions. South of the C-111 canal, construction of box culverts and bridges addresses impacts to the American crocodile, a listed endangered species. Problems were identified with placement of existing culverts, which did not provide enough clear space and which caused the crocodile to cross over the roadway rather than through the culvert. To address this problem, 15 larger box culverts and three bridges will be placed within the roadway. These provide the necessary clear space to allow the crocodile to safely pass under rather than over the road. The location of the box culverts was chosen by reviewing crocodile mortalities associated with road crossings. Placement of these box culverts and bridges will also improve the hydrological flow of water within the project area, provide a crossing area for manatees, and allow greater dispersal of the crocodile population throughout Florida Bay. Species expected to use these box culverts include aquatic and aquatic water dependent species in the area. They were primarily targeted for crocodiles, alligators, and manatees, but certain fishes, turtles, frogs and other species in the wetlands along the project corridor will utilize the culverts. The box culverts will have 100 feet of wingback fencing extending north and south of each culvert. The intent of the wingback fencing is to funnel wildlife into the box culverts. Intermittent or wingback fencing is appropriate south of the C-111 canal for two primary reasons. First, the animals which will be guided into the box culverts are aquatic dependent. The area south of the C-111 canal is primarily water, washed mangrove areas and tidal creeks. Crocodiles tend to move in tidal creeks. Second, it was not possible to ensure continuous fencing along all portions of the project south of the C-111 canal because there are existing businesses. It could not be assured that these businesses would keep a gate closed. The project originally proposed continuous fencing alongside the road where it abuts ENP. Continuous fencing was initially proposed because the initial application included a solid concrete barrier down the median of the road. If a crocodile did enter the road from the side with discontinuous fencing, after crossing one lane the crocodile would hit the barrier, but then easily find its way back to the area it came from. However, the project was later modified to include a tri-beam barrier because it lessens the footprint of the project and thereby lessens the wetland impact. Since the current application does not include a continuous barrier down the middle of the road, if a crocodile enters the road it would cross the tri-beam barrier, go across another lane of roadway before hitting a continuous fence. The animal would then run up and down that fence with nowhere to go except back across the road again. This would increase their exposure to a road kill. With the installation of bridges and culverts along the southern portions of the project corridor, there is no need for continuous fencing because aquatic wildlife, such as the American crocodile, will tend to follow the flow of water through the culverts rather than climb over the roadway. The FGFWFC and ENP oppose continuous fencing and prefer intermittent fencing south of C-111 canal since the project now includes a tri-beam barrier. Positive benefits also include construction of panther crossings at four locations north of the C-111 canal to account for impacts to the Florida panther, a listed endangered species, in the vicinity of the project, along with continuous fencing on both sides of the road north of the C- 111 canal. The crossings will be placed at locations that show historical use by wildlife, including areas at the Dade County Correctional Institute access roadway, the water control structure on the C-109 canal, and the berm of the C- 111 canal. The wildlife crossings are indicated by blue dots on FDOT's Exhibit 1. FDOT underwent years of extensive coordination with the environmental regulatory and resource agencies to design a project that would accommodate their ecosystem management plans. The location of the wildlife crossings was based upon radio telemetry data, collected from radio-collared panthers, and their typical corridor movement. The location was further chosen based on input from the USFWS and the FGFWFC. The continuous fencing north of the C-111 canal will prevent wildlife from crossing the road, and instead force them to use the wildlife crossings. The crossings were designed for panther use, the panthers being the shyest animal in the area. If panthers can be accommodated, then other threatened and endangered species and other wildlife are expected to use them. DOT studies of the effectiveness of wildlife crossings, with fencing, including crossings installed on Alligator Alley, establish that wildlife will use the crossings, both singly and in groups, and that the crossings substantially reduce, if not eliminate, automobile- related mortality of wildlife. Documented wildlife include panthers, wild turkeys, wading birds, alligators, deer, bobcats, black bears and raccoons. SECTION 403.918(2)(a)3, FLORIDA STATUES Section 403.918(2)(a)3, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling.” The replacement of the bascule bridge at Jewfish Creek with a 65-foot high fixed-height bridge will be a benefit to navigation. Because Jewfish Creek is part of the intracoastal waterway, the existing bridge has to be frequently raised or lowered to accommodate marine traffic. Because of the age of the existing structure, frequent breakdowns have been experienced. Marine traffic is stopped or delayed if the bridge cannot be raised or if there is a delay in raising the bridge. Vehicular traffic is stopped while the bridge is raised. Regarding the flow of water, the project incorporates wildlife box culverts and bridges, which will improve tidal flushing and the flow of water south of the C- 111 canal. The District considered this to be a positive consideration under the public interest test. The 25 hydrologic culverts north of the C-111 canal were also a positive factor in the test because the culverts provide future water management capability. Erosion and shoaling are neutral factors in the public interest test because the permit conditions contain a plan to control erosion and shoaling during construction and to provide for road stabilization after construction. In addition, there is a positive factor regarding shoaling in that the roadway area now has a lot of storm action, causing problems with erosion on the side of the road. The project provides for road stabilization, which is a neutral to positive factor in the public interest test. SECTION 403.918(2)(a)4, FLORIDA STATUTES Section 403.918(2)(a)4, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect the fishing or recreational values or marine productivity of the project.” A positive factor pertaining to marine productivity is the box culverts and bridges south of C-111, which will allow marine species to travel beneath the road to access the water on both sides of the road. Removal of the causeway along Lake Surprise opens that water body back up to one contiguous system, which is also a positive factor. The seagrass mitigation addressed in previous sections will also improve marine productivity and provide habitat for fish. SECTION 403.918(2)(a)5, FLORIDA STATUTES Section 403.918(2)(a)5, Florida Statutes, requires the permitting agency to consider “[w]hether the project will be of a temporary or permanent nature.” The project is permanent, though some construction impacts are temporary in nature. Once temporary impacts have ended and the project is complete, the project will be a positive benefit, because of the construction of the SWM system, culverts, animal underpasses and other benefits as set forth above. SECTION 403.918(2)(a)6, FLORIDA STATUTES Section 403.918(2)(a)6, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061.” This factor is not at issue. SECTION 403.918(2)(a)7, FLORIDA STATUTES Section 403.918(2)(a)7, Florida Statutes, requires the permitting agency to consider “[t]he current condition and relative value of functions being performed by areas affected by the proposed activity.” A percentage of wetlands immediately adjacent to the road are impacted by exotic vegetation. Areas further out are part of a significant wetland ecosystem and are considered high quality. This project contains an exotic control program within FDOT's right of way, which is a positive consideration in the public interest test. Wetlands are currently receiving untreated storm water, which runs off the road immediately into the adjacent wetlands and water bodies without treatment. The project will include a SWM system where none currently exists as is detailed in the previous sections. This is a positive factor in the public interest test. The direct impacts of the project on 149 acres of wetlands alongside the roadway is not as large or significant as the impact caused by placement of the original embankment and resulting cut off of the eastern and western portions of the Everglades north of the C-111 canal. Overall, the concurrent and upfront mitigation efforts of FDOT are of regional significance and benefit to Everglades ecosystem by helping to repair the damage caused by the original embankment. THE PROJECT IS CLEARLY IN THE PUBLIC INTEREST The District appropriately weighed all considerations in determining that the project is clearly in the public interest. The greater weight of the competent, credible evidence established that the project is clearly in the public interest. RIGHT OF WAY PERMIT APPLICATION The land encompassed by the ROW permit has been properly adopted as a "work" of the District, requiring District authorization via a ROW Permit Modification to FDOT. The District's real property interest in the C-111 ROW applicable to the ROW permit modification consists of both fee simple and easement interests. The evidence is clear that DOT's application for the permit modification was thoroughly reviewed by the District, consistent with the District's established ROW permit review process. The District presented uncontroverted evidence and expert testimony to establish by a preponderance of the evidence that issuance of the permit modification to FDOT is consistent with all applicable District statutes, rules and other criteria, including the District's conditions for issuance of ROW Permits set forth in Rule 40E-6.301, F.A.C. FBII offered no evidence or testimony to the contrary. FUTURE MODIFICATIONS Modifying the project at a later date to pave a second southbound lane would require a District ERP permit. The addition of impervious surface triggers the District's SWM jurisdiction in this regard. However, FDOT established that that it had no current plans for further widening. The permit conditions require secondary and cumulative impacts associated with the increased capacity be addressed in accordance with the rules and criteria in effect at the time of any application for future widening. In addition, the permits require that FDOT must comply with any more stringent water quality criteria in effect at the time of any future widening. MODIFICATIONS AT THE FINAL HEARING At the Final Hearing, the District issued an Addendum to Staff Report for each of the SWM and WRM permits. The amendments made non-substantive changes to the District's staff reports regarding fencing along the roadway, performance of a study of fencing on the roadway by FDOT, water quality sampling along the roadway, assignment of mitigation credits, and other technical changes in wording for purposes of clarification. The changes set forth in the District's Exhibits 5 and 6 do not create impacts to the environment beyond those addressed elsewhere herein.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Governing Board of the South Florida Water Management District enter a Final Order that issues the three permits challenged in this proceeding (SWM Permit No. 940606-10, WRM Permit No. 9460606-2-D, and ROW Permit No. 2584) subject to the conditions contained in the staff reports on the SWM permit application and the WRM permit application and subject to the additional permit conditions reflected by District Exhibits 5 and 6 and by the Findings of Fact pertaining to the permit for the relocation of the FKAA pipe. DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Leon County, Florida. ___________________________________ CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 11th day of April, 1997.
