The Issue Whether Respondent Richardson’s application for a wetlands resource permit to construct a private road and bridge through wetlands should be denied for failing to provide mitigation to offset the impacts to existing wetlands. Whether Respondent Richardson had provided the Department with reasonable assurance that he or she owns or has sufficient authorization to use certain land in mitigation to offset the wetland impacts.
Findings Of Fact In January of 1990, John Richardson applied to the Department for a wetland resource (dredge and fill) permit under Section 403.918, Florida Statutes to construct a private road and bridge through wetlands. The proposed project would impact 0.032 acres of wetland. The proposed project is not located in an Outstanding Florida Water (OFW). The proposed project would adversely affect the following: the conservation of fish and wildlife; the fishing, recreational values, and marine productivity in the vicinity of the proposed project; and the current condition and relative value of functions being performed by the wetlands impacted by the project. The proposed project would be permanent in nature. The proposed project would not meet the criteria of Section 403.918(2)(a) Florida Statutes, without mitigation adequate to offset the impacts to wetlands. To provide adequate mitigation for the proposed project, Respondent John Richardson proposed to create and preserve 0.029 acres of new wetlands and preserve 4.35 acres of existing wetlands. The preservation would consist of granting to the Department a perpetual conservation easement over the mitigation wetlands. Respondent John Richardson represented to the Department that he was the record owner or had permission to use the land that he offered for mitigation. The Department reasonably relied on that representation. The mitigation proposed by Respondent John Richardson would be adequate to offset the impacts to wetlands resulting from the proposed project. On March 4, 1992, the Department issued to John Richardson a wetlands resource permit for the proposed project. The Department was not aware, before it issued this permit, that John Richardson might not own or have permission to use the mitigation land. The Department was substantially justified in issuing the permit to John Richardson on March 4, 1992. Specific conditions 28-31 of that permit required Respondent John Richardson to grant the Department a conservation easement over the mitigation land within thirty days after issuance of the permit. Respondent John Richardson failed to grant the Department the required conservation easement, and failed to publish notice of the Department’s action. On July 22, 1996, Petitioners filed a timely petition with the Department challenging the Department’s issuance of the March 4, 1992, permit to Respondent John Richardson. On September 11, 1996, Janet Richardson filed an application with the Department for transfer of the March 4, 1992, permit to her following the dissolution of marriage with John Richardson. By letter dated October 11, 1996, the Department requested Janet Richardson to provide additional documentation to show that she either owns the mitigation land or has permission to use that land. Janet Richardson was required to provide a legal survey drawing depicting the mitigation land, property records showing ownership of that land, and a notarized statement from the land owner authorizing her to use that land. The Department specifically advised Janet Richardson that it could not approve the proposed project if she failed to submit this requested documentation to the Department prior to the final hearing. Janet Richardson failed to provide the requested documentation by the date of the final hearing in this matter, or subsequently. As of November 6, 1996, no work had begun on the proposed project. At the hearing, the Department adequately explained its change in position from deciding to issue the permit (on March 4, 1992) and proposing denial of the permit (on November 6, 1996). The Department relies on an applicant’s representations regarding ownership of or right to use land unless a problem is brought to the Department’s attention. In this case, the Department was not aware that there was a problem with the applicant’s right to use the mitigation land until the petition was filed with the Department on July 22, 1996. Janet Richardson failed to provide proof that she either owns or is authorized to use the land to mitigate the impacts to wetlands from the proposed project. Without such proof, Janet Richardson failed to prove that she could mitigate those same impacts from the proposed project.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Respondent Richardson’s request for a wetlands resource permit for the proposed project.ONE AND ORDERED this 17th day of December, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996. COPIES FURNISHED: Richard Stauffer Post Office Box 97 Aripeka, Florida 34679-097 Cy Plata Post Office Box 64 Aripeka, Florida 34679 Steven McCallum Post Office Box 484 Aripeka, Florida 34679 Leslie Neumann Post Office Box 738 Aripeka, Florida 34679 John Richardson 700 West Broad Street Brooksville, Florida 34607 Janet Richardson 1603 Osowaw Boulevard Springhill, Florida 34607 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virgina B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issues are whether IMC Phosphates Company is entitled to an environmental resource permit for phosphate mining and reclamation on the Ona-Ft. Green extension tract, approval of its conceptual reclamation plan for the Ona-Ft. Green extension tract, and modification of its existing wetland resource permit for the Ft. Green Mine to reconfigure clay settling areas, relocate mitigation wetlands, and extend the reclamation schedule.
Findings Of Fact Parties, Phosphate Mining, and Physiography Respondent IMC Phosphates Company, a Delaware general partnership authorized to do business in Florida (IMC), has applied to Respondent Department of Environmental Protection (DEP, which shall include predecessor agencies) for an environmental resource permit (ERP) to mine phosphate rock at the Ona-Ft. Green extension tract (OFG), approval of a conceptual reclamation plan (CRP) to reclaim the mined land at OFG, and modification of a previously issued wetland resource permit (WRP) to relocate and shrink clay-settling areas (CSAs), relocate mitigation wetlands, and extend the reclamation schedule at the Ft. Green Mine, which is an existing mine that is immediately west and north of OFG. Except for the submerged bottom of Horse Creek, which is sovereign submerged land, IMC owns all of the land on which OFG will be located, except for a 1.8-acre parcel owned by Valerie Roberts in Section 16, which is described below with the other sections forming OFG. IMC is negotiating with Ms. Roberts to purchase her land, and she has authorized IMC to pursue mining permits for the entire parcel, including her land. IMC Global, Inc., owns 80 percent of IMC. IMC Phosphates MP Inc., a Delaware corporation, is the managing general partner of IMC. As a successor to International Mining and Chemical Corporation, IMC has been in business for over 100 years. IMC is the largest producer of phosphate in the world. References in this Recommended Order to phosphate mining companies include all forms of business organizations. At present, IMC is operating four phosphate mines in Florida. The largest is the Four Corners Mine, which extends into Hillsborough, Polk, Manatee, and Hardee counties and three river basins. IMC also operates the Hopewell Mine in Hillsborough County, the Kingsford Mine in Hillsborough and Polk counties, and the Ft. Green Mine. Petitioner Charlotte County is located south of Sarasota and DeSoto counties and west of Glades County. The majority of Charlotte Harbor lies within Charlotte County. Charlotte Harbor is a tidal estuary at the mouths of the Peace and Myakka rivers. An Outstanding Florida Water and an Aquatic Preserve, Charlotte Harbor provides critical habitat for a variety of species. Charlotte Harbor is now an estuary of national significance under the U.S. National Estuary Program. Directly or indirectly, Charlotte Harbor supports 124,000 jobs and generates $6.8 billion in sales annually. To protect this unique natural resource, Charlotte County has adopted a local government comprehensive plan directing residential densities away from Charlotte Harbor. Charlotte County has also expended over $100 million in sanitary sewer capital expenditures for, among other things, the protection of Charlotte Harbor, such as by replacing private residential septic tanks with central sewer. Charlotte County's opposition to phosphate mining and reclamation in the Peace River basin is based on concerns about reduced river flows, reduced abundance and diversity of fish species, the loss of wetlands and first-order streams, and degraded water quality. Petitioner Peace River/Manasota Regional Water Supply Authority (Authority) is an agency authorized by Section 373.196(2), Florida Statutes, and created by interlocal agreement among Charlotte, Sarasota, DeSoto, and Manatee counties. The purpose of the Authority is to supply potable water to several suppliers in southwest Florida. Relying exclusively on the Peace River as its source of raw water, the Authority withdraws water from the Peace River two miles downstream of the point that Horse Creek empties into the Peace River. This point is about midway between Arcadia and Charlotte Harbor. As discussed below, the Authority's permit to withdraw water from the Peace River is dependent upon flows at a point upstream of the confluence of Horse Creek and the Peace River. The Authority's current water use permit expires in 2016. From its water treatment plant, which is located near the withdrawal point, the Authority pumps finished water to Charlotte, Sarasota, and DeSoto counties and the City of North Port. Approximately 250,000 persons rely on these suppliers, and, thus, the Authority, for their potable water. At present, the Authority is obligated to supply 18 million gallons per day (mgd), but anticipates demand to increase to 32 mgd by 2015. Petitioner Sarasota County (Sarasota County) owns and operates a water utility system, which currently supplies 24 mgd of potable water to 125,000 persons. Sarasota County obtains potable water from its wellfields, Manatee County, and the Authority, from which it may take up to 3.6 mgd. By 2017, Sarasota County plans to take 13.7 mgd of potable water from the Authority, partly to offset anticipated reductions in the amount of potable water presently being supplied by Manatee County. By 2017, the Authority will supply over half of Sarasota County's potable water. Sarasota County also shares Charlotte County's concerns about the overall environmental integrity of Charlotte Harbor, a small part of which is in Sarasota County. Intervenor Lee County (Lee County) is immediately south of Charlotte County. Nearly half of Charlotte Harbor lies within Lee County. Tourism produced an estimated $1.8 billion to Lee County's economy in 2002. Tourists are attracted to Lee County in part due to the high quality of Charlotte Harbor and its unique chain of barrier islands, passes, sounds, and bays that are integral to local fishing and boating. Lee County shares Charlotte County's concerns about the overall environmental integrity of Charlotte Harbor. Lee County is concerned about, among other things, degraded water quality from the discharge of turbid water, increased pollutant loads to the Peace River and Charlotte Harbor, adversely affected freshwater flows in the Peace River, and the consequences of the phosphate mining industry's inability to restore secondary tributaries, which provide base flow and environmental benefits to Charlotte Harbor. Petitioner Alan R. Behrens (Behrens) resides in Wimauma, Florida, which is in Hillsborough County. He has owned two five-acre tracts along Horse Creek since 1985 and owns a 2.5-acre lot in DeSoto County that fronts Horse Creek for 100-200 feet. The Horse Creek property is 10-15 miles downstream from OFG. Behrens has canoed the entire main stem of Horse Creek from the Peace River to OFG. On May 9, 2004, Behrens canoed up Stream 4w, which is a tributary of Horse Creek on OFG and is described in detail below. Behrens is a founder of Petitioner DeSoto Citizens Against Pollution, Inc. (DCAP), which was incorporated in 1990 as a Florida not-for-profit corporation and has operated in that status continuously since that time. DCAP's purpose is to protect fish, wildlife, and air and water resources; promote public health and safety; increase public awareness of potential environmental hazards; and discourage activities that may be adverse to public health or the environment. DCAP has 52 members, of whom 27 reside in Hardee County, 23 reside in DeSoto County, and two reside in Sarasota County. A substantial number of DCAP's members use Horse Creek for swimming, boating, canoeing, and fossil hunting. At least nine DCAP members own property abutting Horse Creek. Behrens and many DCAP members use wells on their property for potable water. Behrens and DCAP members are concerned that the clay- settling areas described below will increase flooding, the project will adverse affect the timing and volume of the flow and degrade the water quality of Horse Creek, the project will destroy wildlife habitat that--even if reclaimed--will be lost for many years, and the project will cause spills that will destroy fish and wildlife and adversely affect the ability of Behrens and DCAP to enjoy Horse Creek. OFG is in northwest Hardee County, about one-half mile east of the Manatee County line. OFG is about six miles south- southeast of the Four Corners, where Hardee, Manatee, Polk, and Hillsborough counties meet. OFG is about 35 miles east of Bradenton, 12 miles west of Wauchula, several miles south of State Road 62, and 2000 feet north of State Road 64. OFG represents the southernmost extent of phosphate mining in the Peace River basin to date. A nonrenewable resource for which no synthetic substitutes exist, phosphate is an essential nutrient and a major component of manufactured fertilizer. Less important uses of phosphate are for animal feed, soft drinks, and cosmetics. Mining phosphate rock and processing it into phosphoric acid or phosphorus make possible high-yield agriculture, which, by producing more food crop on less land, may reduce worldwide pressure to convert native habitat to improved agricultural land uses. Phosphate is available in limited quantities. Three- quarters of the recoverable phosphate rock in the United States is found in Florida, mostly in discrete deposits ranging from north-central Florida to Charlotte Harbor. Ten to fifteen million years ago, when peninsular Florida was submerged marine bottom, dead marine organisms accumulated as bone and shell on the ocean floor. These accumulations formed the Bone Valley Formation, which, as the seas withdrew and the peninsula emerged, occupies the lower part of the surficial aquifer at the site of OFG. Briefly, the main elements of the proposed activities in these cases, roughly in the order in which they will take place, are relocating wildlife; constructing a ditch and berm system around the area to be mined; removing topsoil from certain donor areas; removing the overburden and depositing it in rows of spoil within the mine cut; removing the underlying phosphate matrix and slurrying it to a nearby beneficiation plant at the Ft. Green Mine for processing to separate the phosphate rock from the sand and clay tailings; slurrying the clay tailings from the beneficiation plant to two CSAs at the southern end of the Ft. Green Mine; slurrying the sand tailings from the beneficiation plant back to the mine cut to backfill the excavation; applying topsoil to certain areas or green manuring areas for which topsoil is unavailable; applying muck to certain areas; contouring the reclaimed land to replicate pre-mining topography; analyzing the post-reclamation hydrology; reclaiming wetlands, streams, and uplands on the reclaimed landscape of OFG; maintaining and monitoring the reclaimed wetlands, streams, and uplands until DEP releases IMC from its ongoing reclamation obligations; correcting any problems in reclaimed areas; and removing the ditch and berm system and reconnecting the reclaimed mined area to the areas adjoining it. In the Findings of Fact, this Recommended Order uses "reclaim" to describe the process by which, post-mining, IMC and its reclamation scientists will construct wetlands, other surface waters, and wetlands at OFG. Likewise, in the Findings of Fact, this Recommended Order uses reclamation and mitigation interchangeably. In the Conclusions of Law, this Recommended Order discusses distinctions in these terms. IMC plans to use multiple draglines to dig a series of long, linear trenches in the mined areas of OFG. Each dragline will first remove overburden and place it in piles parallel to the trench being excavated. After removing the overburden, each dragline will remove the phosphate matrix, which consists of phosphate rock, sand, and clay, and deposit it in shallow depressions. Adding water from the mine recirculation system to the phosphate matrix, IMC will slurry the phosphate matrix to the Ft. Green beneficiation plant, which is about 12 miles from OFG. At the beneficiation plant, the phosphate rock will be separated from the sand and clay tailings, again using water from the mine recirculation system. After recovering the phosphate rock, IMC will slurry the sand tailings, which do not retain water, from the Ft. Green beneficiation plant to OFG for backfilling into the mined trenches with the overburden. Not used in the reclamation at OFG, the clay tailings, which retain water for an extensive period of time, will be slurried to the CSAs O-1 and O-2 on the Ft. Green Mine. CSAs O- 1 and O-2 are the subject of the WRP, which is discussed below. The volume of the clay leaving the beneficiation plant is greater than the clay in situ, pre-mining, because the slurrying process has saturated the clay. The CSAs provide a place to store the saturated clay while it drains and decreases in volume. The clay-settling process takes a long time, extended by IMC's intention to fill the CSAs by stages to make the most efficient use of the areas designated for the settling of clay. By stage-filling the CSAs, IMC will initially install the clay to a considerable height, using an embankment of approximately 50-60 feet. The water that separates from the clay will then drain across the sloped CSA until it enters the mine recirculation system for reuse. The remaining clay will dry and consolidate. After refilling each CSA approximately three times over about ten years, IMC will allow the clay to settle and consolidate a final time. When the clay has consolidated sufficiently to support agricultural equipment, IMC will regrade the area, reduce the side slopes, and remove the embankments, leaving the CSAs at a finished elevation 20-25 feet above the surrounding grade. Given the ongoing nature of IMC's phosphate mining operations, it is likely that some sand and clay tailings from OFG will go elsewhere, rather than return to the OFG mine cuts and CSAs O-1 and O-2, and that some sand and clay tailings from non-OFG mining operations will go to the OFG mine cuts and CSAs O-1 and O-2. However, these facts are irrelevant to the issues raised in these cases, except for consideration of IMC's sand- tailings budget, which is discussed below. Phosphate mining and reclamation practices have changed dramatically in the past 40 years. Although mining operations and reclamation practices are discussed below in detail, one development in mining and one development in reclamation bear emphasis due to the resulting reductions in water losses to the drainage basin. As explained below, mining operations are dependent upon large volumes of water, which flow through the mine recirculation system. Before 1963, phosphate mining pumped roughly 3000 gallons of water for each ton of mined phosphate rock. By the mid-1970s through 1990, the industry had reduced its groundwater consumption to 1500 gallons per ton of mined rock. From 1991 to 1999, the industry again reduced its groundwater consumption from 1200 gallons per ton to 650 gallons per ton, partly by achieving a 97 percent rate of water- recycling in the mine recirculation system. During roughly the same period, phosphate reclamation activities have expanded considerably. Prior to July 1, 1975, reclamation of mined land was voluntary, encouraged only by the availability of state funds to offset reclamation costs. Today, post-mining reclamation is required by law. As a consequence, post-mining reclamation 30 years ago was relatively modest in scope and intensity. One important development in reclamation practices is the phosphate mining industry's transition from early reclamation techniques that relied on relatively inexpensive contouring of the overburden that remained in the mine cuts following the extraction of the phosphate ore. These reclamation practices--aptly called Land-and-Lakes reclamation-- yielded post-reclamation excavations, such as reclaimed lakes or deep marshes, that, compared to pre-mining conditions, retained considerable volumes of surface water. The resulting increase in surface water area, compared to pre-mining surface water area, meant substantial loss of water from the drainage basin due to increased evapotranspiration. More recent reclamation practices, such as those proposed for OFG, feature more extensive backfilling of the mine cuts with tailings to restore pre-mining topography. The result is that less water is lost to evapotranspiration by retention in newly created lakes and deep marshes and more is timely held and passed by the natural drainage conveyances through detention, attenuation, runoff, and base flow--eventually entering the main basin river in volumes, rates, and times (relative to storm events) comparable to pre-mining conditions. Located near the western divide of the Peace River basin, OFG is near a topographical high point marking the divides among five drainage basins. From north to south, the four other basins are drained by the Alafia River, Little Manatee River, Manatee River, and Myakka River. OFG is located toward the bottom of an escarpment where the Polk Uplands descends into the DeSoto Plain. OFG is located almost entirely within a portion of the Horse Creek basin or sub-basin within the Peace River basin. This Recommended Order shall refer to the drainage basins that form the larger Peace River basin as sub-basins. A small portion of the western edge of OFG is within the West Fork Horse Creek (West Fork) sub-basin, and a small portion of the eastern edge of OFG is within the Brushy Creek sub-basin. OFG is toward the upper end of the Horse Creek sub-basin. The West Fork and Brushy Creek sub-basins within OFG contain no streams or stream segments and only, between them, about a half dozen wetlands of one-half acre in size or greater. Obviously, as separate sub-basins, these two areas on OFG are relatively far from Horse Creek. West Fork joins Horse Creek a couple of hundred feet south of OFG and just north of State Road 64. Brushy Creek joins Horse Creek six miles southeast of OFG. Horse Creek joins the Peace River at Ft. Ogden, about 40 miles south of OFG and 15 miles northeast of the mouth of the Peace River at Charlotte Harbor. The Peace River basin comprises about 2350 square miles and extends from its headwater lakes in north Polk County to Charlotte Harbor. By comparison, the Horse Creek sub-basin comprises about 241 square miles, or roughly ten percent of the Peace River basin. At Charlotte Harbor, the average flow of the Peace River is about 1700 cubic feet per second (cfs). By comparison, Horse Creek, at its confluence with the Peace River, flows at an average rate of about 170 cfs--again ten percent of the average rate of flow of the Peace River. West Fork, at its confluence with Horse Creek, flows at an average rate of about 10 cfs. The largest tributary on OFG flows at an average rate of about 0.75 cfs. Forming a little south of Four Corners, Horse Creek is one of five major tributaries of the Peace River. An ecological backbone of this region of Florida, Horse Creek is the only long-term, reliable flowing water system between the Manatee River on the west and Peace River on the east. OFG occupies the upper reaches of Horse Creek. Horse Creek is in good condition, notwithstanding 100 years of nearby cattle ranching. Most of Horse Creek is Class III waters, although a segment near the Peace River is Class I waters. Horse Creek is a moderately incised stream at OFG, especially over its southern two-thirds running through the mine site. Over the little more than three miles that Horse Creek flows through OFG, the streambed drops from nearly 120 feet National Geodetic Vertical Datum (NGVD) at the north end to about 75 feet NGVD at the south end. Within OFG, the valley that Horse Creek occupies is also relatively well-defined. The northern half of the streambed of Horse Creek within OFG is mostly around 100 feet NGVD. The highest adjacent elevations on OFG are about 120 feet NGVD. At least partly for this reason, most of the tributary streams, except in the flat northern portion of OFG, are also well-incised. OFG extends about 4 1/2 miles north to south, and ranges from 2/3 to 2 1/2 miles from east to west, for a total area of about 6 1/2 square miles. Lying entirely within Township 34 South, Range 23 East, OFG, from its northernmost border, occupies three sections, which are, from north to south: Sections 4, 9, and 16. Immediately west of the southern half of Section 9, OFG occupies most of the southern half of Section 8. Immediately west of Section 16, OFG occupies Section 17, as well as, immediately south of Section 17, all of Section 20 and most of the northern half of Section 29. OFG also extends to parts of four other sections: Sections 10 and 15 east of Sections 9 and 16, respectively, and Sections 18 and 19, west of Sections 17 and 20, respectively. The existing surface waters and nearly all of the existing wetlands are on the two columns of sections running north and south: on the east, Sections 4, 9, and 16 and, on the west, Sections 17, 20, the south part of Section 8, and the north part of Section 29. The northernmost extent of OFG, which consists of Section 4 and the north half of Section 9, is known as the Panhandle. Horse Creek enters OFG at the southwest corner of the Panhandle, at a point midway along the west border of Section 9. The stream flows south through the approximate center of OFG for about 1 1/2 miles until it leaves OFG for a very short distance at the southwest corner of Section 16, as it crosses a corner of property owned by the Carlton-Smith family (Carlton cutout). Horse Creek re-enters OFG at the northeast corner of Section 20 and runs just inside the eastern border of Section 20 and the portion of Section 29 within OFG. Horse Creek leaves OFG near the midpoint of the east border of Section 29. Numerous tributary streams enter Horse Creek within OFG, from the east and west sides of the creek. IMC and DEP have assigned to each of these streams or stream segments a number, followed by a letter to indicate if the stream or stream segment enters Horse Creek from the east or west. To the west of Horse Creek, proceeding from south to north, the streams are 0w, 1w, 2w, 3w, 4w, 5w, 6w, 7w, 8w, and 9w. To the east of Horse Creek, proceeding from south to north, the streams are 12e, 11e, 10e, 5e, 9e, 4e, 8e, 7e, 6e, 2e, 3e, and the Stream 1e series, consisting of Streams (sometimes referred to as stream segments) 1ee, 1ed, 1ec, 1eb, and 1ef. All of the streams join Horse Creek on OFG except Stream 2e, which joins Horse Creek a few hundred feet upstream of the point at which Horse Creek enters OFG, and Stream 7w, which empties into a backwater swamp (G185/G186) that, in turn, empties into either Horse Creek or the lower end of Stream 6w immediately before it empties into Horse Creek. The alphanumeric designation of the backwater swamp in the preceding paragraph is based on the Map F-2 series, which assign such a designation to each existing wetland community and then identifies the wetland community. For example, the backwater swamp consists of a wet prairie (G185) surrounded by a mixed wetland hardwoods (G186). If a wetland consists of more than one wetland community, this Recommended Order will refer to it either as a wetland complex with its lowest-numbered wetland community--here, wetland complex G185--or the combination of wetland communities--here, G185/G186. Reclaimed wetlands are identified by Figure 13A5-1, which assigns each wetland an alphanumeric designation and identifies its community. The letter indicates if the reclaimed wetland is east ("E") or west ("W") of Horse Creek. Table 13A5-1 2AI identifies each reclaimed wetland by its alphanumeric designation, community, acreage, and status as connected, isolated, or isolated and ephemeral. Table 13A5-1 2AI identifies 110 wetlands to be reclaimed. The largest wetland is E003, which is a 23.8-acre mixed wetland hardwoods that constitutes the riparian wetland of the Stream 1e series. The next largest is W003, which is a 20.7-acre wet prairie at the headwaters of Stream 9w. Only three other reclaimed wetlands will be at least ten acres: E018, an 11.3-acre wet prairie fringe on the east side of Section 4; E020, an 11.5-acre freshwater marsh at the center of E018; and W039, an 11.2-acre bay swamp at the headwater of Stream 1w. Thirteen reclaimed wetlands are at least five acres, but less than ten acres, and 30 reclaimed wetlands are less than one acre. Table 13A5-1 2AI identifies 44 reclaimed ephemeral wetlands totaling 101 acres. Reclaimed uplands are identified by Map I-2. Although the scales of Map I-2 (one inch equals about 820.5 feet) and the Map F-2 series (one inch equals about 833.3 feet) are larger than the scales of nearly all of the other maps and figures in these cases, acreages derived from these maps for uplands and existing wetlands are very rough approximations and do not approach in accuracy the acreages derived from Table 13A5-1 2AI for reclaimed wetlands. These maps and figures omit one stream segment to be reclaimed. IMC and DEP restricted the designation scheme to streams and stream segments that had once been natural systems, thus excluding artificially created waterways, such as those created by agricultural ditches cut into swales to drain upslope wetlands and uplands. During the hearing, older aerial photographs revealed that, under this scheme, the parties had omitted one stream segment, which they designated Stream 3e?. Stream 3e? is northeast of Stream 3e, from which it is separated by a wetland (G133/G134/G135/G136). Besides the streams, two other areas within OFG require early identification due to their prominence in these cases. The northerly area is the Heart-Shaped Wetland (G138/G139/G140/G141/G143/G143A), which is the large wetland in Section 4 into which the Streams 1e series and Stream 3e empty. The other area of heightened importance is in the center of OFG in Sections 17 and 16 and is called the East Lobe, Central Lobe, and West Lobe or, collectively, the Lobes. Dominated by large bayhead headwaters (West Lobe--G197; Central Lobe--G179; East Lobe--G178), the Lobes and the streams connecting them to Horse Creek are entirely within the no-mine area. The West and Central Lobes connect to the west bank of Horse Creek by Streams 6w and 8w, respectively. The East Lobe connects to the east bank of Horse Creek by Stream 9e. The no-mine areas of the West and East Lobes are much larger than the no-mine area of the Central Lobe, and the East Lobe contains a large area of uplands extending east of, and supporting, the large bayhead. Most OFG wetlands are connected or contiguous, and many of these wetlands are riparian wetlands within the 100-year floodplain of Horse Creek or a floodplain of one of the tributaries of Horse Creek. (As used in this Recommended Order, the floodplain of Horse Creek runs roughly parallel to the banks of Horse Creek and excludes any portion of the floodplain more directly associated with Horse Creek's tributaries or their connected wetlands.) All or nearly all of the isolated wetlands on OFG are ephemeral and permanent, except in very low rainfall periods. The scale of mining is large. The phosphate matrix, which contains the phosphate rock, is overlaid by a layer of sand and clay overburden, which, with topsoil, is projected to range from 20-40 feet, averaging 27 feet, in thickness. The phosphate matrix is projected to range from 25-35 feet, averaging closer to 25 feet, in thickness, although as much as four feet of the matrix may consist of interburden, such as sand, clay, limerock, or gravelly materials. Thus, mining will remove, on average, 52 feet of the earth's surface. In no area will mining extend deeper than the top of the limey clay bed, which is the confining layer dividing the surficial aquifer from the intermediate aquifer, of which the limey clay bed is a part. (Technically, the matrix is part of the confining layer, but it provides so little confinement that it is easier to consider it part of the surficial aquifer. A consequence of this fact is that the removal of the matrix does not increase the rate of deep recharge, at least where the matrix is replaced with cast overburden.) At OFG, the thickness of the surficial aquifer varies from 65-70 feet at the basin divide to 50 feet or less at the riparian wetlands and averages 55 feet. Beneath the intermediate aquifer, which is about 300 feet thick at OFG, lies the Floridan Aquifer. IMC projects OFG to yield 24 million tons of phosphate rock, 26 million tons of clay tailings, and 68 million tons of sand tailings. IMC projects that the no-mine areas, which are discussed below, will result in five million tons of phosphate rock reserves remaining in the ground post-mining. The scale of the environmental impact of mining is correspondingly large. Mining removes all flora and fauna, all the topography, soils, and upper geology, in the path of the electric dragline, which, as long as a football field (including one end zone), removes the uplands, wetlands, streams, and soils covering the matrix. At the depths at which mining will take place, IMC will be removing the entire surficial aquifer. Applications, ERP, CRP Approval, and WRP Modification Preliminary Matters These cases involve permits and an approval of the phosphate mining and reclamation processes. These cases do not involve the processes by which IMC transforms phosphate into end products, mostly fertilizer. With one exception, these cases do not involve the processes by which IMC separates the phosphate ore from the sand and clay (i.e., the beneficiation process). (The exception is that IMC is seeking to extend by ten years the life of the Ft. Green beneficiation plant to separate the phosphate from the matrix slurried from OFG.) These other post- mining processes, which are separately permitted, are not directly involved in these cases because IMC will slurry the phosphate matrix mined from OFG to the existing Ft. Green beneficiation plant, which is already permitted and operating. Even though the WRP modification will authorize the relocating of already-permitted CSAs at the Ft. Green Mine, the WRP modification will not authorize the design or construction of the embankments that retain the water within these CSAs while they are essentially clay ponds. DEP will separately permit the construction and operation of CSAs O-1 and O-2. Application and Proposed Agency Action On April 24, 2000, IMC filed a Consolidated Development Application for an ERP to mine phosphate from the proposed 20,675-acre Ona Mine, approval of the CRP for the Ona Mine following the completion of mining, and modification to the existing WRP for the Ft. Green Mine to install three CSAs in the area of the Ft. Green Mine immediately west of the Ona Mine and extend the life of the Ft. Green beneficiation plant by ten years to process the matrix from the Ona Mine. On January 17, 2003, DEP issued an Intent to Issue an ERP and proposed approval of the CRP. Petitioners in several of the above-styled cases challenged this proposed agency action, and the parties embarked upon an energetic prehearing process of preparation, including extensive discovery and prehearing telephone conferences with the Administrative Law Judge, in anticipation of a final hearing in the fall of 2003. IMC and DEP entered into a Team Permitting Agreement, pursuant to 1996 legislation creating the concept of Ecosystem Management. The Team Permitting Agreement incorporates the concept of "net ecosystem benefit," but, on its face, is not binding on IMC. The obvious purpose of the Team Permitting Agreement was to induce the permitting agencies (i.e., DEP, Florida Fish and Wildlife Conservation Commission (FWC), Southwest Florida Water Management District (SWFWMD), two regional planning councils, the Florida Department of Community Affairs, the Florida Department of Transportation (DOT), Hardee County, DeSoto County, and the U.S. Army Corps of Engineers) to use a common development application and coordinate, to the greatest practical extent, their respective reviews of the proposed activities of IMC. Three weeks prior to the start of the final hearing, on September 15, 2003, DEP issued the Final Order in Charlotte County et al. v. IMC Phosphates Company and Department of Environmental Protection, 2003 WL 21801924, 4 ER FALR 42 (Altman Final Order). The Altman Final Order denies IMC's application for a WRP/ERP and disapproves IMC's proposed CRP for the Altman tract, which is a short distance northwest of OFG. Although the final and recommended orders are detailed and complex, the Altman Final Order essentially concludes that IMC's CRP was inconsistent with applicable law because its basic reclamation concept was "to replace an existing system of high-quality wetlands . . . with a deep freshwater marsh." On the same date of the Altman Final Order, DEP Deputy Secretary Allan Bedwell ordered DEP's Bureau of Mine Reclamation (BMR) to re-examine IMC's application for an ERP and request for approval of the CRP for the Ona Mine to assure consistency between the proposed agency action approving the ERP, CRP, and WRP modification and the Altman Final Order. The Bedwell memorandum specifically directs BMR to verify IMC's classification and characterization of the extent and quality of wetlands on the site; verify that IMC's proposed reclamation activities, including its proposed control of nuisance or exotic species, "maintain or improve the water quality and function" of the biological systems present at the site prior to mining; and verify that IMC meets the financial assurance requirements of law. The memorandum concludes by directing BMR to modify any proposed agency action, if necessary. By memorandum dated January 5, 2004, Richard Cantrell and Janet Llewellyn, Deputy Directors of DEP's Division of Water Management Resources, responded to the memorandum from Deputy Secretary Bedwell. With respect to IMC's classification and characterization of wetlands, the January 5 memorandum states that DEP staff had conducted additional review of available aerial photographs, reviewed field notes from previous field inspections, conducted new field inspections, and received comments from IMC and Charlotte County. To describe better onsite habitats and communities, DEP staff had also revised the DOT Florida Land Use, Cover, and Forms Classification System (FLUCFCS) for use at OFG. The FLUCFCS codes are a three-digit numbering system to classify and identify individual vegetative communities or land uses. With respect to the ability of the proposed reclamation to maintain or improve the water quality and function of biological systems, the January 5 memorandum states that Deputy Directors Cantrell and Llewellyn had recommended to IMC that it consider phasing the mining on Ona, so that it could apply its experience in reclaiming OFG to the remainder of the original Ona Mine; preserving additional onsite natural stream channels and proposing more detailed reclamation plans for mined streams; preserving additional onsite bay-dominated wetland systems; providing additional assurances that upgradient sand/scrub areas will continue to support hydrologically, through seepage, preserved and restored bayheads; providing a plan to control nuisance and exotic species in the uplands, which, if infested, would degrade adjacent wetlands post-mining; and providing assurances that groundwater flows to Horse Creek and its preserved tributaries will be maintained during mining and post-reclamation. With respect to financial responsibility, the January 5 memorandum states that Deputy Directors Cantrell and Llewellyn had advised IMC that it must provide its financial responsibility for the mitigation of all wetlands authorized to be mined, rather than providing its financial responsibility on a phased basis, as it had previously proposed. On January 30, 2004, IMC filed a voluminous amendment to the Consolidated Development Application in a package known as the January submittal. The most evident change made by the January submittal is the reduction of the Ona Mine to OFG, which was the westernmost one-fifth of the original Ona Mine. The introduction to the January submittal highlights the changes that IMC made to the original application. The introduction explains that IMC has employed a revised mapping protocol to ensure that all waters of the State, including wetlands delineated by Florida Administrative Code Rule 62-340.300 and other surface waters delineated by Florida Administrative Code Rule 62-340.600, are classified as wetlands or water, pursuant to the modified FLUCFCS codes. Rejecting the nomenclature of the January 5 memorandum regarding the phasing of mining at the Ona site, the introduction to the January submittal identifies OFG as a 4197- acre, "free-standing" mining tract, not in any way "coupled to or dependent on the development of the remainder of the Ona Tract," from which it was taken. The introduction explains that "free-standing" means that OFG is a "complete mining, reclamation, and mitigation proposal" and that the OFG ERP will be "for a single-phase project." The introduction to the January submittal notes that IMC has enlarged the no-mine area to include "nearly all of the natural stream channel tributaries to Horse Creek present in the portions of the Parcel that have not been converted to improved pasture." The amendments thus avoid disturbing four additional natural stream segments. The introduction explains that IMC considered a series of factors in determining whether to mine a stream segment: "stream segments length, the existing land cover adjacent to the stream and its watershed, the complexity of the channel geometry[,] and historical agricultural impacts." The introduction adds that IMC has added a "state-of-the-art" stream restoration plan for mined natural streams. The introduction to the January submittal states that IMC responded in two ways to the suggestions about bay swamps in the January 5 memorandum. First, IMC modified the conventional mapping protocol for bay swamps. Rather than require that the canopy of the subject community be dominated by loblolly bay, sweetbay, red bay, and swamp bay trees, as prescribed by the FLUCFCS codes, IMC designated as bayheads "depressional, seepage-driven forested headwater wetlands, surrounded, at least in part, by moderately to well drained upland soils, with a defined outlet connection to waterways such that the 'bay head' soils are perennially moist but infrequently inundated." This new mapping protocol did not require the presence of bay trees in the canopy. Second, IMC enlarged the no-mine areas to avoid disturbing all but nine percent of existing bay swamps at OFG, totaling less than ten acres. IMC based its mine/no-mine decisions for particular bayheads on analysis of the hydrological, water quality, and relative functional value provided by these communities to fish and wildlife. The introduction concludes that IMC has also developed detailed plans to mitigate for the few mined bayheads. The introduction to the January submittal states that IMC has added new protections for the sand/scrub areas upgradient from, and providing seepage into, the bayheads in the West and East Lobes. First, IMC will avoid mining certain of these areas, presumably adjacent to the East Lobe. Second, IMC will employ special mining techniques and schedules to reclaim these upland areas quickly and effectively. Additionally, the introduction notes that IMC is proposing to: align the dragline "cut patterns" such that the spoil piles will be aligned with the groundwater seepage path where feasible or, where not feasible, to grade the spoil piles prior to backfilling the mine voids with sand so as not to impede post- reclamation groundwater flow; accelerate the sand backfilling schedule of the mined voids adjacent to avoided "bay heads" to one year following mining disturbance; and create a reclaimed stratigraphy that results in post-reclamation seasonal high and normal water table elevations and hydraulic conductivities in the seepage slopes that will provide the hydrologic support required to sustain these communities. As explained in a later section of the introduction to the January submittal, "stratigraphy" refers to the soil layers or horizons, which are described in detail below. The introduction states: "The majority of the overburden will be placed at depths below the surface soil horizons. As a result, the surface soils will either be comprised of translocated surface soils or a loose mixture of 'green manure organics,' overburden, and sand that both resembles the native soils and provides a suitable growing medium for the targeted vegetative communities." The introduction adds that, at final grade, sand tailings will always overlie overburden by at least 15 inches. The introduction asserts that the overburden underlying the backfilled sand tailings will be "comprised of and have properties which are similar to B horizons (subsoils) and C horizons (substratums) of native Florida soils." The introduction to the January submittal identifies a Habitat Management Plan (also known as the Site Habitat Management Plan) that, with the Conservation Easement and Easement Management Plan discussed below, will guide the revegetation of upland natural systems, control nuisance and exotic species in uplands, and manage all potential listed species that may be present, whether or not observed, in areas to be mined. The introduction also mentions habitat enhancements "to relocate Florida mice" and to manage gopher tortoises. The introduction concludes with IMC's undertaking to ensure that exotic/nuisance cover does not exceed ten percent in all reclaimed wetlands and to provide a 300-foot buffer around wetlands where cogongrass--a highly invasive nuisance exotic described in more detail below--will not exceed five percent coverage. The introduction to the January submittal notes that the proposed activities will maintain groundwater flows to Horse Creek and tributaries in the no-mine areas during mining and post-reclamation. The introduction again mentions IMC's commitment, where feasible, to align spoil piles with groundwater flow and, where not feasible, grade spoil piles before backfilling so as to add a thicker band of sand to these areas. The introduction also cites the ditch and berm system as a means to maintain groundwater seepage during mining. The introduction to the January submittal states that IMC will meet its financial-responsibility requirements for the entire cost of wetland-mitigation at OFG. The January submittal contains a discussion of community-mapping protocol. IMC's methodology for mapping bay swamps is discussed above. The most common vegetative communities and land uses are described in the following paragraphs. Improved pasture is actively grazed pasture dominated by cultivated pasture grasses, such as bahiagrass, but may support native grasses. Improved pasture may contain sporadic shrubs and trees. Pine flatwoods occupy flat topography on relatively poorly drained, acidic soils low in nutrients. The overstory is discontinuous with areas of dense, species-rich undergrowth or groundcover. Longleaf pine and slash pine predominate. Pine flatwoods require frequent fires, which are carried by grasses, and the pines' thick bark helps prevent fire damage to the trees. At one time, about three-quarters of Florida was covered by pine flatwoods. Palmetto prairies typically represent the undergrowth of pine flatwoods. Once the trees are removed, such as by timbering, the resulting community is a palmetto prairie, which is characterized by an often-dense cover of saw palmettos with no or scattered pines or oaks. Occupying dry, sandy, well-drained sites, sand live oak communities feature a predominance of sand live oaks and often succeed in relatively well-drained pine flatwoods after the removal of the pines, conversion to palmetto prairie, and suppression of fire. Sand live oak may also occupy xeric oak communities. Moister soils may support live oak communities, which also may succeed pine flatwoods after the removal of the pines, conversion to palmetto prairie, and suppression of fire. Hardwood-conifer mixed is a blend of hardwoods and pines with trees of both categories forming one-third to two- thirds of the cover. Hardwoods are often laurel oak and live oak, and pines are often slash pine, longleaf pine, and sand pine. The midstory is typically occupied by younger individuals of the overstory communities and wax myrtle. If sufficient light reaches the ground, groundcover may exist. Temperate hardwoods are often a forested uplands transition to a wetland. Temperate hardwoods are usually dominated by laurel oak, but other canopy species may include cabbage palm, slash pine, live oak, and water oak. Mixed hardwoods is a similar community, except that water oak is predominant in the canopy. Two of the three most prevalent forested wetlands on OFG are bay swamps, which have been discussed, and hydric oak forest, which, because of their location in the Horse Creek floodplain, will not be mined. At DEP's request, IMC remapped some of the floodplain that was uplands (and already in the no- mine area) to hydric oak forest. The other prevalent forested wetlands on OFG is mixed wetland hardwoods, which consists of a variety of hardwood species, such as the canopy species of red maple, laurel oak, live oak, sweetbay, and American elm. Slash pines may occur, but may not constitute more than one-third of the canopy. Suitable shrubs include primrose willow, wax myrtle, and buttonbush. Ferns are often present as groundcover. Often immediately downgradient of bay swamps, mixed wetland hardwoods are typically in the hydric floodplains of small streams. Transitioning between uplands, such as palmetto prairies, and the wetter soils hosting bay swamps and mixed wetland hardwoods, wetland forested mixed communities (also known as wetland mixed hardwood-coniferous) often occupy wet prairies from which fire has been suppressed for at least 20 years and, as such, "are largely or entirely an artifact of land use practices during the past sixty years or so that have allowed the conversion of wet prairies . . . to this cover type." The canopy of wetland forested mixed is slash pine, laurel oaks, live oaks, and other hardwoods that tolerate or prefer wetter soils. Wet prairies are a dense, species-rich herbaceous wetland, usually dominated by grasses. Wet prairies occupy soil that is frequently wet, but only briefly and shallowly inundated. Similar to freshwater marshes, but with shorter hydroperiods, wet prairies often fringe marshes, and their border will shift in accordance with rainfall levels over several years. Freshwater marshes consist predominantly of emergent aquatic herbs growing in shallow ponds or sloughs. Typical marsh herbs include pickerelweed, maidencane, and beakrushes. Hydroperiod and water depth drive the presence of species in different locations within a freshwater marsh. Marshes may be isolated or may occupy a slough in which their water flow is unidirectional. Heavily grazed or drained marshes may suffer dominance of primrose willow. Abundant softweed may indicate ditching, and soft rush, which cattle avoid, may indicate heavy grazing. Shrub marshes succeed stillwater freshwater marshes from which fire has been excluded. Shrub marshes form after agricultural ditching or culverted fill-road building. Common shrub species include buttonbush, southern willow, and primrose willow. Hydric trees, such as red maple and swamp tupelo, may occupy the edges of shrub marshes. IMC supplemented the January submittal with submittals dated February 26 and 27, 2004. Collectively, these are known as the February submittal. The February submittal is much less- extensive than the January submittal, although it includes substantive changes. After examining the January and February submittals, on February 27, 2004, DEP issued a Revised Notice of Intent to Issue an ERP for OFG, approved a revised CRP for OFG, and issued a revised WRP modification for the Ft. Green Mine, which now authorizes two CSAs--O-1 and O-2--that have the effect of relocating the previously approved CSAs farther away from Horse Creek and reducing their size due to the reduced scale of OFG as compared to the original Ona Mine; reconfiguring certain mitigation wetlands, necessitated by the relocation of CSAs O-1 and O-2, with a net addition of 2.7 acres of herbaceous wetland area; and changing the reclamation schedule to conform to the already-approved CRP for the Ft. Green Mine. IMC supplemented the January and February submittals with submittals dated March 30, April 18, and April 21, 2004. These submittals, which are known as the Composite submittal, are much less-extensive than the February submittal. DEP expressly incorporated the February submittal into the ERP, CRP approval, and WRP modification dated February 27, 2004. DEP has impliedly incorporated the changes in the Composite submittal into the ERP, CRP approval, and WRP modification. Thus, this Recommended Order uses the latest version of these documents when discussing the relevant permit or approval. The March 30, 2004, submittal updates the following maps, figures, and tables: Map F-2 (to correct legend), Map I-2 (to correct the post-reclamation vegetation in the vicinity of Streams 3e, 1w, 2w, 3w, and 4w), Figures 13A5-1 and 13B-8 (to reflect changes to Map I-2), Tables 12A1-1 and 13A1-1 (revised land uses in several stream locations), and Tables 13A5-1, 345A-1, and 26O-1 (to reflect above changes). The March 30, 2004, submittal also includes the Draft Study Plan for Burrowing Owls and Amphibians and revised Tables A and B for the Financial Responsibility section of the ERP. No material revisions are included in the submittals after March 30, 2004. Submittals after March 30, 2004, include financial responsibility forms, including a draft escrow agreement, and updated information on the temporary wetland crossing at the point that Stream 2e forms at the downstream end of the Heart-Shaped Wetland. The last item, dated April 20, 2004, is a revision of Figure 13B-8, but solely for the purpose of showing that the Heart-Shaped Wetland remains connected to Stream 2e, despite the temporary presence of a crossing. This is the last revision to the CDA prior to the commencement of the hearing. During the hearing, IMC submitted modifications of the mining and reclamation activities, and DEP agreed to all of these modifications. During the hearing, DEP proposed modifications of the mining and reclamation activities, and IMC agreed to all of these modifications. These modifications, such as identifying the annual hydroperiod of bay swamps as 8-11 months and the final changes to post-reclamation topography, are identified in this Recommended Order and incorporated into all references to the ERP or CRP approval. In general, the ERP addresses wetlands, surface waters, and species dependent upon either, and the CRP addresses uplands and species dependent exclusively upon uplands. Later sections of the Recommended Order will discuss the ERP, the CRP approval, and the WRP modification. All of the maps, figures, and tables incorporated into the ERP, CRP approval, or WRP modification are contained in the CDA. Overview of Mined Areas, No-Mine Areas, and Reclaimed Areas The ERP permits IMC to mine 3477 acres and requires IMC to reclaim 3477 acres. The ERP recognizes that IMC will not mine 721 acres, which is about 17 percent of the 4197-acre site. (Most acreage figures are rounded-off in this Recommended Order, so totals may not always appear accurate.) Although various exhibits and witnesses sometimes refer to the no-mine area as the preserved area, this label is true only insofar as IMC will "preserve" the area from mining. However, post-reclamation, the area is not preserved. After the property reverts to the Carlton-Smith family, it will return to its historical agricultural uses, subject to a Conservation Easement that is discussed below. Table 12A1-1 is the Mine Wide Land Use Analysis. Table 12A1-1 identifies, by acreage, each use or community presently at OFG, such acreage proposed to be mined, and such acreage proposed to be reclaimed. When not listed separately, this Recommended Order combines all non-forested wetlands, including mostly herbaceous wetlands and shrub marshes, into the category of herbaceous wetlands. Shrub marshes presently account for only 4.7 acres at OFG and will account for only 10.3 acres, post-reclamation. Ignoring 35 acres that presently are barren or in transportation or urban uses, the present uses or communities of OFG are agricultural (2146 acres), upland forests (904 acres), rangeland (510 acres), forested wetlands (380 acres), herbaceous wetlands (208 acres), and open water (15 acres). Nearly all of the existing agricultural uses are improved pasture (1942 acres); the only other use of significance is 165 acres of citrus. Well over half of the area to be mined is agricultural. Over half of the area to be mined is improved pasture (1776 acres, or about 51 percent of the mined area). Adding the citrus groves, woodland pasture, and insignificant other agricultural uses to the area to be mined, the total of agricultural uses to be mined is 1976 acres, or 57 percent of the mined area. The two most prevalent upland forest communities presently at OFG are sand live oak and pine flatwoods; the next largest community, hardwood-conifer mixed, accounts for about half of the size of sand live oak or pine flatwoods. These upland forests contribute about one-fifth of the area to be mined (731 acres, or 21 percent of the mined area). Cumulatively, then, agricultural land and upland forests constitute 78 percent of the mined area. For all practical purposes, all of the rangeland presently at OFG is palmetto prairie. This unimproved rangeland contributes a little less to the mining area that do upland forests; mining will consume 475 acres of rangeland, which is 14 percent of the mined area. Cumulatively, then, agricultural land, upland forests, and native rangeland will constitute 92 percent of the mined area. The addition of the remaining upland uses--25 acres of roads, 5 acres of barren spoil areas, and one acre of residential--results in a total of 3213 acres, or still 92 percent, of the 3477 acres to be mined. This leaves eight percent of the mined area, or 264 acres, as wetlands and other surface waters. As noted above, the wetlands are divided into forested and herbaceous wetlands. Forested wetlands will contribute 82 acres, or about two percent, of the mined area. Nearly all of the forested wetlands presently at OFG are divided almost equally among mixed wetland hardwoods, hydric oak forests, and bay swamps. Bay swamps total 104 acres. In terms of the forested wetlands present at OFG, mining will consume mostly mixed wetland hardwoods, of which 43 acres, or 36 percent of those present at OFG, will be mined. Mining will eliminate only nine acres, or nine percent, of bay swamps and six acres, or six percent, or hydric oak forests. Mining will eliminate a large percentage-- 67 percent--of hydric pine flatwoods present at OFG, but this is 12 acres of the 18 existing acres of this wetland forest community. Herbaceous wetlands will contribute 168 acres, or about five percent, of the mined area. Nearly all of the herbaceous wetland communities are wet prairies (108 acres) and freshwater marshes (81 acres). Mining will eliminate 95 acres, or 88 percent, of the wet prairie present at OFG, and 67 acres, or 83 percent, of the freshwater marshes present at OFG. IMC will mine 13.5 acres of open water, which consists primarily of cattle ponds and ditches. The only natural water habitat is natural streams, which total 2.2 acres. IMC will mine 0.9 acres of natural streams. Also incorporated into the ERP, Table 13A1-5, provides another measure of the impact of mining upon natural streams. According to Table 13A1-5, IMC will mine 2.8 acres of the 25.6 acres of natural streams. As noted in Table 13A1-5, reclamation of streams, which is discussed in detail below, is based on length, not acreage, and, under the circumstances, a linear measure is superior to an areal measure. Table 12A1-1 also provides the acreage of reclaimed community that IMC will construct. These habitats or uses are listed in the order of the size of the area to be reclaimed, starting with the largest. For agriculture, IMC will reclaim 1769 acres after mining 1976 acres. Adding the 170 acres of agriculture in the no-mine area, agricultural uses will total, post-reclamation, 1939 acres. For upland forest, IMC will reclaim 1055 acres after mining 731 acres. Adding the 173 acres of upland forest in the no-mine area, upland forest habitat will total, post- reclamation, 1227 acres. For rangeland, IMC will reclaim 323 acres after mining 475 acres. Adding the 35 acres of rangeland in the no- mine area, rangeland will total, post-reclamation, 358 acres. For herbaceous wetlands, IMC will reclaim 217 acres after mining 168 acres. Adding the 39 acres of herbaceous wetlands in the no-mine area, herbaceous wetlands will total, post-reclamation, 256 acres. For forested wetlands, IMC will reclaim 106 acres after mining 82 acres. Adding the 298 acres of forested wetlands in the no-mine area, forested wetlands will total, post-reclamation, 404 acres. ERP ERP Specific Condition 3 requires IMC to provide to DEP for its approval the form of financial responsibility that IMC chooses to use to secure performance of its mitigation costs. IMC may not work in any wetland or surface water until DEP has approved the method by which IMC has demonstrated financial responsibility. DEP shall release the security for each individual wetland that has been released by BMR, pursuant to Specific Condition 17. The escrow agreement is a two-party contract between IMC and J.P. Morgan Trust Company, as escrow agent. The escrow agreement acknowledges that IMC will transfer cash or securities to the escrow agent in the stated amount, representing IMC's obligations to perform ERP mitigation plus the ten percent add- on noted in the Conclusions of Law. If IMC fails to comply with the ERP or Section 3.3.7 of the SWFWMD Basis of Review, the escrow agent is authorized to make payments to DEP, upon receipt of DEP's written certification of IMC's default. The escrow agreement may be amended only by an instrument signed by IMC, DEP, and the escrow agent. ERP Specific Condition 3 requires IMC to calculate the amount of the security based on Table B, which is the Wetland Mitigation Financial Summary. Table B lists each forested and wetland community from Table 12A1-1, the acreage for each community, and the unit costs per acre of mitigation. The acreage figures are the acreage figures on Table 12A1-1. The unit costs per acre are as follows with the FLUCFCS codes in parentheses: herbaceous (641, 643)--$7304; forested bay wetland (611)--$11,692; other forested wetland (613, 617, 619, 630)--$11,347; shrub (646)--$8780; hydric palmetto prairie (648)--$9231; and (hydric) pine flatwoods (625)--$10,568. Table B also shows 10,141 feet of streams to be reclaimed at a cost per foot of $37, stream macroinvertebrate sampling at a total cost of $48,100, and water quality/quantity monitoring at a cost of $293,000. Adding the costs of wetland and stream reclamation, sampling, and monitoring, plus ten percent, Table B calculates the mitigation liability of IMC as $3,865,569. IMC has agreed to increase this amount for the reclamation of Stream 3e?. ERP Specific Condition 4 requires IMC to submit to BMR annual narrative reports, including the actual or projected start date, a description of the work completed since the last annual report, a description of the work anticipated for the next year, and the results of any pre-mining surveys of wildlife and endangered or threatened species conducted during the preceding year. The reports must describe any problems encountered and solutions implemented. ERP Specific Condition 5 requires IMC to submit to BMR annual hydrology reports. Relative to initial planting, IMC shall submit to BMR vegetative statistic reports in year 1, year 2, year 3, year 5, and every two years after year 5, IMC must submit to BMR vegetation statistic reports. ERP Specific Condition 6 addresses water quality in wetlands or other surface waters adjacent to, or downstream of, any site preparation, mining, or reclamation activities. Specific Condition 6.a requires, prior to any clearing or mining, IMC to sever the areas to be disturbed from adjacent wetlands. IMC severs or isolates the mining area when it constructs the ditch and berm adjacent to, but upland of, the adjacent wetlands not to be mined. Figure 14E-1 portrays the elements of the ditch and berm system as all outside of the no-mine area (or OFG property line, where applicable). In the illustration, from the mine cut toward the no-mine area (or OFG property line), IMC will construct the ditch, the 15-foot wide berm, the monitoring wells, and the silt fence. ERP Specific Condition 6.b requires the ditch and berm system to remain in place until IMC has completed mining and reclamation, monitoring indicates that no violation of "State Water Quality Standards" are expected, and DEP has determined that "the restored wetlands are adequately stabilized and sufficiently acclimated to ambient hydrological conditions." DEP's decision to allow the removal of the ditch and berm system shall be based on a site inspection and water quality monitoring data. Upon removal of the ditch and berm system, the area that had been within the ditch and berm system shall be restored to grade and revegetated according to the methods and criteria set forth in Specific Condition 14. ERP Specific Condition 6.c requires IMC to use best management practices for turbidity and erosion control to prevent siltation and turbid discharges in excess of State water quality standards, under Chapter 62-302, Florida Administrative Code. Specific Condition 6.d requires IMC daily to inspect and maintain its turbidity-control devices. If the berm impounds water above grade, IMC must daily visually inspect the integrity and stability of the embankment. ERP Specific Condition 7 requires that IMC implement a baseline monitoring program for surface water and groundwater and continue the program through the end of the mine life. The data from this program shall be included in the annual narrative reports described in Specific Condition 4. The locations of the sampling sites are depicted on Map D-4. ERP Specific Condition 7.a identifies three monitoring stations, which are in Horse Creek just upstream of the stream's entrance onto OFG (and possibly just upstream of the offsite confluence of Stream 2e with Horse Creek), in Horse Creek at State Road 64, and in West Fork a short distance upstream of its confluence with Horse Creek. Before and during mining, IMC must monthly monitor 18 parameters, including temperature, pH, dissolved oxygen, total suspended solids, conductivity, turbidity, color, total phosphorous, ammonia, nitrate/nitrite, and chlorophyll a. During mining, IMC must semi-annually monitor 11 additional parameters, including alkalinity, biological oxygen demand, chloride, and iron. ERP Specific Condition 7.b identifies one monitoring station, which is at the junction of Stream 6w and Horse Creek. Before and during mining, IMC must monthly monitor ten parameters, including temperature, pH, dissolved oxygen, total suspended solids, conductivity, and color. During mining operations, IMC must semi-annually monitor the same 11 additional parameters described in Specific Condition 7.a. ERP Specific Condition 7.c identifies two clusters of monitoring wells, one located near the offsite confluence of Stream 2e with Horse Creek and one located near the collecting station on West Fork near its junction with Horse Creek. During mining operations, IMC must semi-annually monitor 23 parameters, including pH, temperature, conductivity, alkalinity, total phosphorous, color, turbidity, chloride, iron, and nitrate/nitrite. ERP Specific Condition 8 requires IMC immediately to cease all work contributing to turbidity violations of "State Water Quality Standards established pursuant to Chapter 62-302, F.A.C." Specific Condition 8 requires IMC to stabilize all exposed soils contributing to the violation, modify work procedures that were responsible for the violation, repair existing turbidity-control devices, and install more such devices. Specific Condition 8 requires IMC to notify BMR within 24 hours of the detection of any turbidity violation. ERP Specific Condition 9 requires IMC to report all unauthorized releases or spills of wastewater or stormwater in excess of 1000 gallons per incident to BMR, as soon as practicable, but not later than 24 hours after detection. ERP Specific Condition 10 addresses water levels and flows in wetlands and other surface waters adjacent to, and downstream of, any site preparation, mining, and reclamation activities. Prior to any clearing or mining activities adjacent to no-mine wetlands and other surface waters, Specific Condition 10.a requires IMC to install monitoring wells and staff gauges and commence monitoring water levels, as required by ERP Monitoring Required, which is a part of the ERP that is discussed below. IMC shall monitor water levels in each of the no-mine streams at the point that it intercepts the 100-year floodplain of Horse Creek. ERP Specific Condition 10.a provides: During mining, recharge ditches adjacent to no-mine areas shall be charged with water or recharge wells shall be installed to maintain base flows and/or minimize stress to the vegetation in the preservation areas. Water levels in the recharge ditches shall be maintained at levels sufficient to support the normal seasonal water level fluctuations in the wetlands as determined from the baseline monitoring included in Table MR-1. Under ERP Specific Condition 10.a, prior to any clearing or mine activities, IMC must install monitoring wells and staff gauges and monitor water levels, as specified in the ERP Monitoring Required. IMC must daily monitor water levels in each of the no-mine streams at the point of its interception with the 100-year floodplain of Horse Creek. During mining, IMC shall charge recharge ditches with water or install recharge wells to maintain base flows and minimize stress to vegetation in no-mine areas. IMC must maintain water levels in the recharge ditches at levels sufficient to support the normal seasonal water level fluctuations in the wetlands, as determined from the baseline monitoring included in Table MR-1, which is described below. IMC must daily check the water levels in the recharge ditches, record this information in logs, and make these logs available to BMR during its quarterly inspections. IMC shall monthly inspect the water levels in adjacent no-mine wetlands and notify BMR in writing if these wetlands show signs of stress. If adjacent no-mine wetlands become stressed, upon DEP's approval, IMC will take additional actions, such as altering mining and reclamation procedures, modifying the recharge ditch, providing additional sources of water, and conducting additional monitoring. During the hearing, IMC hydrologist and engineer Dr. John Garlanger testified: "[IMC] will install a recharge well system along the preserved areas." (Tr., p. 2800) The parties treated recharge wells as a part of the ditch and berm system, both at the hearing and in their proposed recommended orders (DEP, paragraph 75; Charlotte County, paragraph 575; and IMC, paragraph 339.) However, Specific Condition 10.a imposes no such obligation upon IMC, nor does any other provision in the ERP or the CDA. The above-quoted provision of Specific Condition 10.a identifies recharge wells as an alternative. The other option in Specific Condition 10.a is to charge the ditches with water. This condition is confusing because it poses, as alternative requirements, one option of a specific effect--i.e., recharged ditches--and the other option of a means of achieving that effect--i.e., recharge wells. The objective is sufficient water in the ditch. The means of charging the ditch would appear to be limited to direct rainfall, pumping water from the mine cuts, diverting water from the mine recirculation system, or pumping water from the intermediate or Floridan aquifer through recharge wells; at least the first two of these charging options are already incorporated into the OFG ditch and berm system. Confirming that recharge wells are optional is Figure 14E-1, which labels the recharge well depicted at the bottom of the ditch as "Alternate--Recharge Well." Figure 14E-1 illustrates a pump forcing the water from the bottom of the deeper mine cut to the bottom of the recharge ditch. (Figure 14E-1 also illustrates that--in order, running from the mine cut toward the no-mine area (or OFG property line)--the ditch, the 15-foot wide berm, the monitoring wells, and the silt fence will all be located outside of the no-mine area (or within OFG).) ERP Specific Condition 10.b prohibits reductions in downstream flows from the project area that will cause water quality violations in Horse Creek or the degradation of natural systems. IMC shall monitor surface water levels continuously at the above-described points at State Road 64 and West Fork and monthly near the above-described junction of Stream 2e and Horse Creek. IMC shall monitor monthly at the above-described clusters of monitoring well locations and at piezometers located across Section 9 from the no-mine area into the uplands to the east, in the West Lobe and the adjacent uplands to the west, in the East Lobe and the adjacent uplands to the east, and in Horse Creek about one-quarter mile from the southern border of OFG. IMC shall daily monitor rainfalls at a rain gauge near the junction of Stream 2e and Horse Creek. IMC shall report the results of the monitoring in the reports required in Specific Condition 4. ERP Specific Condition 11 requires IMC to obtain authorization from FWC before relocating gopher tortoises or disturbing their burrows. ERP Specific Condition 11 also requires IMC to relocate gopher frogs and other commensals to FWC-approved sites before clearing. At the time of the hearing, FWC had not yet approved IMC's plan to relocate gopher tortoises, but this approval was expected shortly. ERP Specific Condition 12 requires IMC to complete mining, filling, and reclamation activities generally in accordance with the schedule stated in this condition. Specific Condition 12.a prohibits IMC from commencing severance or site preparation more than six months prior to mining, except as approved by DEP for directly transferring topsoil or muck to a contoured mitigation site. IMC must complete final grading, including muck placement, not later than 18 months after the completion of mining operations, which include the backfilling of sand tailings. IMC must conduct its hydrological assessment in the first year after contouring. ERP Specific Condition 12.a provides a timetable for work in wetlands and other surface waters. IMC may not commence severance or site preparation more than six months prior to mining. IMC shall complete final grading, including muck placement, not more than 18 months after the completion of mining operations, including backfilling with sand tailings. IMC shall complete Phase A planting, which is of species that tolerate a wide range of water levels, not more than six months after final grading or 12 months after muck placement. IMC shall conduct the hydrological assessment in the initial year after coutouring. IMC shall complete Phase B planting, which is of species that tolerate a narrower range of water levels, within 12 months after the hydrological assessment and Phase C planting, which is shade-adapted groundcover and shrubs, as well as additional trees and shrubs required to meet the density requirements of ERP Specific Condition 21 [sic; probably should be ERP Specific Condition 16], at least two years prior to release of forested wetlands. ERP Specific Condition 12.b provides that IMC shall clear, contour, revegetate, and reconnect wetlands and watersheds as shown in Tables 3AI-6A and 3AI-10A, Maps H-1, H-9, and I-6, and Figures 13B-8, 13A5-1, and CL-1. Table 3AI-6A lists each reclaimed wetland by number, the last year in which it will be disturbed, the last year in which it will be mined, the year in which grading will be completed, the year in which revegetation will be completed, and the number of years between mining or disturbance and reclamation and revegetation. The span of years between mining or disturbance and reclamation ranges from three (two wetlands) to eight (six wetlands). Table 3AI-10A is the Reclamation Schedule Summary. The table identifies four reclamation units in the Horse Creek sub-basin, one reclamation unit in the West Fork sub-basin, and one reclamation unit in the Brushy Creek sub-basin. For each reclamation unit, Table 3AI-10A shows the period of mining, period of mine operations, period for contouring, and period for revegetation. These years are relative: mining runs four years, mine operations run seven or eight years (starting one year after mining starts), contouring runs seven or eight years (starting within one year of the end of mining), and revegetation runs five or six years (starting one year after the start of contouring). Map H-1 is the Mine Plan. Map H-1 assumes four draglines will operate in OFG for five years of active mining. IMC's tentative plan is first to mine the west side of OFG, which is nearer the Ft. Green Mine at which the draglines are presumably deployed at present, and then to mine adjacent mining blocks. For instance, IMC would mine the northwest corner of Section 4 in Year 1, the southwest corner of Section 4 in Year 2, the northeast corner of Section 4 in Year 3, and the southeast corner of Section 4 in Year 4 before removing the dragline south of Section 4 to mine an unmined area in Year 5. Map H-1 depicts the ditch and berm system running continuously along the edge of the no-mine area from the north end of OFG, south along the no-mine borders that trace the east and west edges of the 100-year floodplain of Horse Creek, to their southern termini. On the east floodplain, the ditch and berm system turns east at the northwest corner of Section 21, near the Carlton cutout, runs to the easternmost extent of OFG, turns north to the northeast corner of Section 4, and runs to the northwest corner of Section 4, where the ditch and berm system ends. On the west floodplain, the ditch and berm system runs to the southernmost extent of OFG near its confluence with West Fork, turns west and north, as it traces the border of OFG along Sections 29, 20, and 19, where it ends at a point about one-quarter mile from the northern boundary of Section 19. For the areas closest to the no-mine area, Map H-1 also depicts the direction of the mine cuts and, inferentially, the spoil piles. These cuts and piles are generally perpendicular to the direction of Horse Creek. Figure 2AI-24 displays the locations of the six reclamation units identified in Table 3AI-10A. The West Fork and Brushy Creek reclamation units occupy the sub-basins bearing their names, so they are at the western and eastern edges, respectively, of OFG. The HC(1) reclamation unit is almost all of Section 4. According to Table 3AI-10A, IMC will mine this reclamation unit from 2006-09, contour it from 2009-15, and revegetate it from 2010-15. Combining the information from Map H-1 for the Stream 1e series, all of it but Stream 1ee, which is the most-downstream stream, will be mined in the first year of the sequence, and Stream 1ee will be mined in the second year. However, Stream 1ee will be disrupted longer because a 200 foot- wide dragline access corridor runs across it, just upstream of the Heart-Shaped Wetland, as shown on Map H-1 and Figure RAI 514-1. Map H-9 is the Tailing Fill Schedule. The tailings are the sand tailings; the clay tailings, which are called waste clays, are deposited in the CSAs. Sand tailings are backfilled into mine cuts starting in year 3, and the process is completed in year 7. Map H-9 reproduces the blocks shown on Map H-1, except for one change in Section 20, and adds two years to each block. An explanatory note on Map H-9 states that IMC will backfill and grade the upland areas immediately west of the West Lobe and east of the East Lobe with sand tailings within one year of mining. Map I-6 is the Post-Reclamation Streams. This Recommended Order addresses streams in detail below. As already noted, at the hearing, DEP identified Stream 3e? as another stream eligible for restoration under the eligibility criterion used in these cases, and IMC has agreed to restore this stream and add it to Map I-6. Figure 13B-8 is the Post-Reclamation Connection Status of the reclaimed wetlands. A map, Figure 13B-8 depicts connected wetlands, isolated wetlands, isolated wetlands that are ephemeral, and cattle ponds. Figure 13A5-1 is the Identification of Created Wetlands. Also a map, Figure 13A5-1 assigns numbers to each reclaimed wetland and identifies the habitat to be reclaimed. These two figures provide a good basis for comparing the reclaimed wetlands to the existing wetlands by type, location, size, and proximity to streams. These two figures confirm the removal of cattle ponds to points considerable distances from Horse Creek, streams, riparian wetlands, or even most isolated wetlands. Thirteen cattle ponds totaling 7.6 acres will be reclaimed on OFG. Generally, these cattle ponds are located as far away as possible from the 100-year floodplain of Horse Creek. Except for the cattle ponds and three connected reclaimed wetlands that drain to the West Fork or Brushy Creek, all of the connected reclaimed wetlands will be connected to Horse Creek, usually by streams, but in several cases directly to the 100-year floodplain of Horse Creek. Connected reclaimed wetlands include the headwater and intermittent wetlands of the Stream 1e series (E003/E006/E007/E008/E009/E013/E015/E016), the headwater wetlands of Stream 3e (E022/E023/E024), and the headwater wetlands of Stream 3e? (E018/E019/E020). The decision at the hearing to reclaim Stream 3e? is not reflected on Figure 13A5-1 or 13B-8, which depicts as isolated the large wetland to the northeast of the headwater wetland of Stream 3e. The Stream 1e series reclaimed wetlands complex totals 44.9 acres. The Stream 1e series existing wetlands complex covers a smaller area, perhaps 10 fewer acres. However, the reclaimed wetlands will be somewhat simpler. IMC will reclaim one freshwater marsh (E006) where five presently exist (G108, G115, G125, G126, and G129). IMC will replace two gum swamps (G123 and G121) and two wetland forested mixed (G102 and G132) with the predominant mixed wetland hardwoods (E003). IMC will replace one of the freshwater marshes with hydric oak forest. Just west of the riparian corridor, IMC will replace a wet prairie (G119) with a little hydric flatwoods (G119A) with another freshwater marsh (E014) and will mine a small wet prairie (G028) to the east of the corridor and not replace it with any wetland. On the plus side, IMC will add two very small bayheads (E008--0.7 acres and E013--0.7 acres) to the west side of the corridor and will relocate and expand a large hydric flatwoods (G107) that is beside a small unreclaimed community--a hydric woodland pasture (G105). The reclamation of the headwater of Stream 3e better re-creates the existing wetlands, in size and type of community. The only change is the conversion of a shrub marsh (G134) in the center of the wetland to a freshwater marsh (E023), essentially enlarging the freshwater marsh (G135) presently in the center of this wetland. The size of the existing and reclaimed wetlands associated with the riparian corridor of Stream 3e and its headwater wetland appear to be the same. The reclamation of the headwater of Stream 3e? provides a more complicated complex of wetland communities than presently exists at that location. The ditch (G019) will be replaced with a natural stream, whose riparian corridor is not depicted due to the fact that IMC agreed to reclaim Stream 3e? at the hearing; however, the reclaimed wetland corridor undoubtedly will be more functional than the present ditch. Presently, the headwater wetland is a large freshwater marsh (G016) fringed by mixed wetland hardwoods (G014) and a wet prairie (G105). A cattle pond (G017) is in the wet prairie, and another cattle pond is at the point where Stream 3e? forms. The north side of this wetland is heavily ditched. The reclaimed headwater wetland, which will be about the same size as the present wetland, will consist of an interior shrub marsh (E019) and freshwater marsh (E020) and a wet prairie fringe (E018). A replacement cattle pond (E026) is moved farther away from the headwater wetland. Reclamation around the Heart-Shaped Wetland results in a more complicated array of wetlands than presently exists. Three ephemeral wet prairies (E021, E026, and E031) will be reclaimed north and west of the Heart-Shaped Wetland and Stream 2e where no wetland exists presently. An isolated freshwater marsh (E034) will be reclaimed south of the Heart-Shaped Wetland where no wetland exists today. Two ephemeral wet prairies (E026 and E037) totaling 4.5 acres will be reclaimed south and east of Stream 2e, close to the no-mine area surrounding Streams 6e and 7e, again where no wetland exists presently. However, IMC will not reclaim a hydric flatwoods (G157) connected to the south border of the headwater wetland of Stream 8e. Reclamation will relocate the headwater wet prairie of Stream 9w closer to Horse Creek. Mining two wet prairies (G047 and G048) and reclaiming them with a single wet prairie of at least the same size (W003--20.7 acres), IMC will also reclaim the downstream portion of Stream 9w with a mixed wetland hardwoods and add a gum swamp (W005--2.4 acres) at the end of Stream 9w, as it enters the no-mine corridor of Horse Creek. IMC will also reclaim an ephemeral wet prairie (W002) just north of the reclaimed segment of Stream 9w. Across Horse Creek from its junction with Stream 9w, IMC will mine the eastern half of a roughly five-acre bayhead (G166), reclaiming the mined part of the bayhead with a mixed wetland hardwoods (E048--6.0 acres). However, where no wetlands presently exist, IMC will reclaim an ephemeral wet prairie (E044) and a larger wetland consisting of a freshwater marsh (E047--9.0 acres) fringed by an ephemeral wet prairie (E046--7.1 acres). In RAI-173 in the CDA, IMC explains that no-mine lines initially ran through some wetlands due to the limited level of detail available in the small scale maps used at the time. IMC representatives have discussed each such bifurcation with DEP biologist Christine Keenan, and IMC made adjustments that satisfied DEP, obviously not eliminating all of the bifurcated wetlands. Alluding to the impracticability of eliminating all bifurcated wetlands, IMC notes in its response to the request for additional information: "A small feature protruding into a mining area is one of the more difficult features to effectively mine around. It requires significant extra distance of ditch and berm systems, which both increases costs and results in greater losses of phosphate ore recovery." Subject to two exceptions, the southernmost extent of reclaimed ephemeral wetlands will be close to the Lobes, especially the West and Central Lobes. Eight such wetlands (W021, W015, W017/W018, W019/W020, W012, W013, W016 and W011) will be west of Horse Creek, and three such wetlands will be east of Horse Creek (E057, E061, and E053). (Although the headwater wetland of Stream 7w, W012 is depicted as ephemeral in Figure 13B-8.) Most of these wetlands will be wet prairies. Three of these reclaimed ephemeral wetlands appear to be in the location of existing wetlands (G093/G094, G091/G092, and G090), and the existing wetlands are freshwater marshes fringed with wet prairies, except that the smallest, G090, is a wet prairie. The last reclaimed wetland on the east side of Horse Creek is just north of the Carlton cutout. In reclaiming Stream 5e, IMC will reclaim a small bayhead (E063--1.3 acres) in the middle of the stream's OFG segment. This replaces a wet prairie/hydric oak forest (G204/G205) in the same location and of the same size. On the other side of Horse Creek and to the south of Stream 5e, IMC will reclaim the headwater wetlands of Streams 5w, 4w, 3w, and 2w. The headwater wetland of Stream 5w is a long freshwater marsh (G210) with a small shrub marsh (G207) that drains an elaborate array of agricultural ditches to the west. These ditches shifted some of the drainage that historically entered Stream 4w into Stream 5w. Reclaiming the stream with a wider wetland forested mixed corridor, as it will do for Streams 4w, 3w, and 2w, IMC will expand the headwater wetland by reclaiming a long freshwater marsh (W024--7.9 acres) fringed on its upgradient side by a small wet prairie (W023--2.2 acres). IMC will also remove a cattle pond (G209) presently abutting the center of the freshwater marsh. IMC will reclaim an ephemeral wet prairie (W026) between Streams 5w and 4w, relatively close to the Horse Creek floodplain. Except for a very small ephemeral wet prairie just west of the headwater wetland of Stream 4w and an ephemeral, largely mixed wetland hardwoods reclaimed in the West Fork sub- basin (W041/W042/W043), W026 is the southernmost reclaimed ephemeral wetland on OFG. The pattern of the reclamation of Streams 4w, 3w, and 2w is otherwise identical: each reclaimed stream, in a reclaimed wetland forested mixed corridor, will receive water from reclaimed freshwater marshes of 3.5 to 5.1 acres in size. Presently, Stream 4w has no headwater marsh, instead receiving water from the elaborate ditching scheme described in connection with Stream 5w. Streams 3w and 2w presently receive water from small headwater wetlands, although Stream 2w also receives water from an agricultural ditch. The last major reclamation on the west side of Horse Creek relates to Stream 1w. Alone of all the streams, Stream 1w is an agricultural ditch throughout its length, except for a short segment just upstream from the no-mine area. However, alone of all the streams at OFG, Stream 1w drains a primarily seepage-supported wetland. This well-defined headwater wetland complex comprises, from upstream to downstream, a cattle pond (G505), freshwater marsh (G506), mixed wetland hardwoods (G507), bay swamp (G513), wetland forested mixed (G512), wet prairie (G514), hydric oak forest (G511), and ditch (G512A). Reclaimed, this headwater will be the largest reclaimed bay swamp (W0399-1.2 acres). In addition to the two small bay swamps in the wetland corridor of Stream 1e series, the small bay swamp in Stream 5e, and the Stream 1w headwater bay swamp, the only other bay swamp to be reclaimed on OFG will be a part of a wetland (W037/W036) that will be in the center of Section 19 and drain into the West Fork. The bay swamp component of this wetland will be 4.4 acres and will replace a similarly sized wetland (H008/H009/H009A) with a smaller bay swamp core. Map CL-1 is the Reclamation Schedule. This map identifies the year in which specific areas within OFG will be reclaimed. With two exceptions, Map CL-1 tracks Map H-9, which is the Tailing Fill Schedule, by identifying the same blocks and adding two years to each of them. One exception may be due to the February 19, 2004, and February 26, 2004, revisions of Map H-9. The latter revision changed the year of backfilling part of northwestern Section 20 from year 7 to year 5. Map CL-1 tracks the older version of Map H-9 and provides for reclamation of this area within Section 20 for year 9, not year 7. This means that part of the northwestern Section 20 would remain backfilled, but not revegetated, for four years. This may be an oversight in Map CL-1 because it was last revised January 22, 2004. The other exception concerns the uplands immediately east of the East Lobe. Map H-9 provides for sand tailings for the northern half of this area in year 6 and for the southern half of this area in year 5, but Map CL-1 provides for both areas to be reclaimed in year 7, so the southern half would remain backfilled, but not revegetated, for two years. This may be intentional, as ERP Specific Condition 12.d requires that IMC backfill and contour the two areas upslope of the bayheads in the West and East Lobes within one year after the completion of mining, but nothing in the ERP requires expedited revegetation of these upland areas. ERP Specific Condition 12.b requires IMC to include mining and reclamation schedule updates in the annual reclamation report that it files, pursuant to Chapter 62C-16, Florida Administrative Code. Specific Condition 12.b warns that "significant changes" to these schedules may require a permit modification. ERP Specific Condition 12.c states, in its entirety: "Mine cuts shall be oriented in the direction of ground water flow, generally perpendicular to Horse Creek as shown on Map H-1." The introduction to the January submittal, witnesses, and parties agree that IMC is required to orient the spoil piles in the direction of groundwater only to the extent practicable, so the unconditional language of ERP Special Condition 12.c is inadvertent. ERP Specific Condition 12.d provides that sand tailings placement and final contouring shall be completed within one year after the completion of mining, as shown on Map H-9, in the two areas upslope from the unmined bayheads (G178 and G197), which are in the East and West Lobes. ERP Specific Condition 13 addresses the construction, removal, and revegetation of the pipeline corridor shown on Figure RAI 514-1. This figure depicts a narrow "Mine Access Corridor (Pipelines, Road, Powerlines)" passing at the point that Stream 2e forms at the downgradient end of the Heart-Shaped Wetland. Specific Condition 13 contains seven subsections governing the pipeline corridor to minimize its impact on the wetlands and other surface waters that it crosses. Figure RAI 514-1 also depicts a 200-foot wide "Dragline Walkpath Corridor" that crosses Stream 1ee and Stream 3e within 100 feet of the Heart-Shaped Wetland. No conditions attach to the construction, operation, removal, and reclamation of this area because, unlike the pipeline corridor as it crosses Stream 2e, all of this portion of the dragline corridor will be mined. ERP Specific Condition 14 states that IMC shall restore as mitigation 322 acres of wetlands, as shown in Maps I-1, I-2, I-3, and I-6; Figure 13A5-1; and the post-reclamation cross-sections. Map I-1 is the Post Reclamation Topo. IMC updated this map with several limited changes at the end of the hearing, and DEP accepted the new Map I-1. Comparing Map I-1 with Map C-1, which is the Existing Topography, the post-mining topography substantially replicates the pre-mining topography, although Table 26M-1 reveals a lowering of some of the highest pre-mining elevations, including the highest elevation by eight feet. Maps I-2 and I-3 are, respectively, Post Reclamation Vegetation and Post Reclamation Soils. As noted above, Specific Condition 14 references these maps, but only in connection with the restoration of 322 acres of wetlands. Maps I-2 and I-3 cover all of OFG, so they cover wetlands and other surface waters, which are properly the subject of an ERP, and uplands, which are properly the subject of a CRP approval. Naturally, the ERP does not incorporate the all of Maps I-2 and I-3 because they include all of the uplands. Unfortunately, as discussed in the next section, the CRP approval likewise fails to obligate IMC to reclaim the uplands in accordance with Map I-2 and the upland soils in accordance with Map I-3. This omission is inadvertent, so the Recommended Order will assume that IMC will reclaim the uplands as depicted in Map I-2 and the upland soils as depicted in Map I-3. Although the upland portions of Maps I-2 and I-3 should be discussed in the next section, they will be discussed in this section because the CRP approval fails to incorporate them and discussing both maps in one place allows for a more coherent presentation. Map I-2 is the Post Reclamation Vegetation. Map I-2 depicts the post-reclamation upland and wetland vegetation on OFG. This map reveals wide edges of roughly one-quarter to one- half mile of reclaimed improved pasture on the east and west edges of OFG. The core of OFG is Horse Creek and its 100-year floodplain, which are always within, but do not always define, the no-mine area. Between the no-mine area and the reclaimed improved pasture are the reclaimed wetlands described above and larger area of reclaimed uplands described below. Map I-2 and Map F-1, which is Pre Mining Vegetation, allow a comparison, by community, location, and area, of reclaimed uplands with existing uplands. In broad overview, IMC will reclaim everything in Section 4 outside the Heart-Shaped Wetland, which is the northernmost extent of the no-mine area, and Stream 2e. From the point that Horse Creek enters OFG, IMC will reclaim a broad area between the no-mine area and reclaimed improved pasture, south to the Carlton cutout. From this point, reclamation will be limited to the west side of Horse Creek, and the area between the no-mine area and reclaimed improved pasture will narrow progressively for the remaining 1 1/2 miles that Horse Creek runs in OFG. The width of the core, or no-mine area, is generally about 750 feet, but widens considerably at different points. Where Horse Creek enters OFG, the no-mine area is approximately 1750 feet wide, but narrows south of Stream 8e to about 750 feet. From the Central Lobe to the East Lobe, the no-mine area expands to nearly 4000 feet across. Except for another expansion at the West Lobe, the width of the no-mine area south of the Lobes remains at about 750 feet until Horse Creek exits OFG. The riparian wetlands of Horse Creek, which are within the no-mine area, are mixed wetland hardwoods for the first mile that Horse Creek flows in OFG and hydric oak forest for the remainder of Horse Creek's passage through OFG. The width of the non-pasture uplands adjacent to the no-mine area also varies. In describing the width of these upland areas between the no-mine area and the reclaimed improved pasture, this Recommended Order will include the reclaimed wetlands described above. These wetland areas are small, except for the headwater wet prairie of Stream 9w, the headwater freshwater marshes of Streams 5w, 4w, 3w, and 2w, and a few isolated wetlands. On both sides of Stream 2e, IMC will reclaim a band of hardwood conifer mixed of about one-half mile in width. At present, this area is occupied by a smaller area of hardwood conifer mixed and nearly a one-half mile wide band of pine flatwoods or, to the south, pine flatwoods and sand live oak. East of Streams 6e, 7e, and 8e, IMC will reclaim a band 1500-3000 feet wide of hardwood conifer mixed, shrub and brushland, and sand live oak, between the no-mine area and the reclaimed improved pasture. This replaces a broader area of pine flatwoods, sand live oak, palmetto prairie, and xeric oak. From Stream 8e south, IMC will reclaim uplands on both sides of Horse Creek. At this point, the reclaimed area between the no-mine area and the reclaimed improved pastures measures about 1750 feet wide on the west of Horse Creek and about 2000 feet wide on the east of Horse Creek. Including the no-mine area in the center, these reclaimed areas average about one-mile wide south to the Lobes. From Stream 8e south to the East Lobe, IMC will reclaim largely hardwood conifer mixed. This replaces a large citrus grove, a larger area of improved pasture, and three smaller areas of palmetto prairie. On the west side of Horse Creek, the vegetation is more varied, both at present and as reclaimed. North of Stream 9w, IMC will reclaim a large palmetto prairie, a sizeable area of sand live oak, and a small area of temperate hardwood. South of Stream 9w, IMC will reclaim a large area of hardwood conifer mixed, areas of pine flatwoods, sand live oak, and palmetto prairie, and a small area of temperate hardwood. The uplands surrounding Stream 9w presently consist of improved pasture along the downstream half of the conveyance and palmetto prairie and sand live oak along and near its upstream reach. South of Stream 9w are a large area of improved pasture, pine flatwoods, and sand live oak and two smaller areas of palmetto prairie. The combination of no-mine area and reclaimed area, exclusive of reclaimed improved pasture, attains its greatest width--about 10,000 feet--from the western edge of the West Lobe to the eastern edge of the East Lobe, although this includes a 1000-foot strip of improved pasture between the bayhead in the East Lobe and sand live oak east of the bayhead. This area narrows to less than 6000 feet, just north of the Carlton cutout. South of this point, at which the reclaimed upland habitat will be found only on the west side of Horse Creek, the total width of the no-mine area and reclaimed area east of the reclaimed improved pasture tapers down from a little over 3000 feet to less than 1500 feet at the south end of OFG. Map I-2 also discloses the communities or habitats that will exist, post-reclamation, on OFG. These communities or habitats include those that will be in the no-mine area and those that will be reclaimed. At present, the West Lobe is mostly bayhead, wet prairie, and wetland forested mixed with smaller areas of hydric woodland pasture and shrub marsh. The West Lobe also includes upland communities of palmetto prairie, temperate hardwoods, and pine flatwoods. A large wet prairie extends from the northwest corner of the West Lobe. IMC will reclaim this wet prairie as improved pasture with a small strip of hardwood-conifer mixed. To the west of the West Lobe is a small strip of improved pasture and a large area of hardwood-conifer mixed. IMC will reclaim the improved pasture with hardwood-conifer mixed and sand live oak and most of the hardwood-conifer mixed with sand live oak. The areas surrounding the no-mine area associated with Stream 6w are currently improved pasture; IMC will reclaim these areas as hardwood-conifer mixed. The Central Lobe is mostly bayhead with small areas of wetland forested mixed and wet prairie. Palmetto prairie is also within the Central Lobe, nearer to Horse Creek. IMC will reclaim the areas around the Central Lobe and Stream 7w with hardwood-conifer mixed and some palmetto prairie. At present, the Central Lobe and Stream 7w are surrounded by palmetto prairie and some pine flatwoods with an area of sand live oak to the northwest of the Central Lobe. Unlike the no-mine areas forming the West and Central Lobes, which incorporate insubstantial areas of uplands, the no- mine area forming the East Lobe, like the no-mine area around Streams 6e, 7e, and 8e, incorporates a substantial area of uplands. Upgradient of the large bayhead forming the western half of the East Lobe is the 1000-foot strip of improved pasture, and upgradient of the pasture is a large sand live oak area. IMC will mine the eastern half of this sand live oak area and reclaim it as xeric oak. IMC will mine a small wet prairie presently at the southern tip of the bayhead in the East Lobe and reclaim the area as hardwood-conifer mixed. From the East Lobe south to the Carlton cutout, the reclaimed uplands will consist of a long area of temperate hardwoods abutting the no-mine area and a wider area of hardwood-conifer mixed abutting the temperate hardwoods. This area is presently improved pasture. On the west side of Horse Creek, south of the Carlton cutout, the area outside the no-mine area is presently improved pasture, except for a large palmetto prairie around and south of the headwater wetland of Stream 1w. Between the no-mine area and reclaimed improved pasture, IMC will reclaim palmetto prairie and a small area of hardwood-conifer mixed between the headwater wetlands of Streams 5w and 3w. Map I-3 is the Post Reclamation Soils. The legend classifies the soils by "[moderately well-drained]--greater than 30"; "[poorly drained]--greater than 30"; "[poorly drained]-- less than 30"; "[poorly drained]--stream"; "[very poorly drained]--muck"; and "[very poorly drained--mineral depression]." The references to "30" are the thicknesses, in inches, of sand tailings over overburden. Maps E-1 and E-2 are, respectively, Detailed Existing Soils and General Existing Soils. Comparisons between these two maps, on the one hand, and Map I-3, on the other hand, reveal specifics of the soil-reclamation process. The most distinctive feature of soils present at OFG is the thin band of Felda Fine Sand, Frequently Flooded, that runs down the center of OFG. As always, this reinforces the most distinctive feature of OFG--Horse Creek. However, the Felda Fine Sand extends beyond the Horse Creek floodplains to Stream 2e, the Stream 1e series, and the headwater wetland of Stream 5w. All of these soils are in the no-mine area except at the Stream 1e series and headwater wetland of Stream 5w. A closely related soil underlies the floodplain of the lower end of Stream 6w, which is also in the no-mine area. These are the only locations on OFG with these soils. The Felda Fine Sand is a "poorly drained soil having layers of loamy and/or spodic materials underlying sandy surfaces at least 20 inches thick on streams terraces and floodplains." Exclusive of the loamy or spodic materials, Map I-3 shows that IMC will reclaim the drainage characteristics of this type of soil at the Stream 1e series, but not at the headwater wetland of Stream 5w. IMC will also reclaim this type of soil at Streams 9w, 5w, 4w, 3w, 2w, and 1w. Another distinctive soil, pre-mining, is "moderately well to excessively drained soils having layers of loamy and/or spodic materials underlying sandy surfaces greater than 30 inches thick on gentle upland slopes and rises." Except for a couple of areas at the eastern end of the East Lobe, these soils presently are all outside of the no-mine area. IMC will reclaim these soils, generally in the areas previously described as sand live oak or xeric oak, as well as in a long band along the southern border of the slough associated with Stream 9w and a large area on the west sides of Sections 29 and 20. These areas correspond reasonably well in area and location to the existing soils with the same drainage characteristics. The two most poorly drained soils, pre-mining, are "very poorly drained to poorly drained mineral soils in depressions" and "very poorly drained soils with organic surfaces on low gradient seepage slopes." The latter are exclusively mucky soils, and the former range from mucky fine sand to fine sand. Most of the mucky soils are in the no-mine area, such as in each of the Lobes and along Streams 6e and 7e. IMC will not reclaim with similar soils the three areas with these mucky soils that are outside the no-mine area. The mucky fine soils are more widely distributed outside the no-mine area. The only significant areas of fine mucky sand presently at OFG underlie the Heart-Shaped Wetland, the headwater wetland of Stream 8e, and parts of the West Lobe. IMC will reclaim these mucky fine soils generally in accordance with their present areas and locations. The most significant reductions in area are from the slough of Stream 9w and the northeast corner of Section 4. Except for another category of poorly drained soil and four small areas of a somewhat poorly drained soil--all within the no-mine area--the remaining soil is "poorly drained soils having layers of loamy and/or spodic materials underlying sandy surfaces predominantly greater than 30 inches thick primarily on gently sloping uplands." The reclaimed counterpart of this poorly drained soil occupies the largest part of OFG, post-reclamation. This represents a substantial expansion of coverage of this type of soil, mostly at the expense of "poorly drained soils having layers of loamy and/or spodic materials underlying sand surfaces less than 30 inches thick primarily on gently sloping uplands." Map I-6 is the Post Reclamation Streams. These are addressed below. Figure 13A5-1 is the Identification of Created Wetlands. These wetlands have already been discussed. ERP Specific Condition 14 states that IMC shall reclaim wetlands in accordance with the schedule contained in Table 3AI-6A, which has been discussed. Specific Condition 14 lists various requirements applicable to the wetlands that IMC will create. ERP Specific Condition 14.a requires IMC to remove "suitable topsoil" prior to mining wetlands. IMC must time the clearing of topsoil donor sites and reclaiming of other sites so that it optimizes the opportunities for the direct transfer of topsoil, without any intervening storage time. If IMC must remove wetland topsoil more than six months before it will be spread at a reclamation site, IMC must store the topsoil in such a way as to minimize oxidation and colonization by nuisance species. Specific Condition 14.a encourages IMC to relocate any endangered or threatened plant species to appropriate mitigation sites. ERP Specific Condition 14.b requires IMC to grade reclaimed forested wetland areas after backfilling them with sand tailings and/or overburden and cap them with "several inches of wetland topsoil." IMC shall use direct transfer of topsoil and live materials, such as stumps, shrubs, and small trees, where feasible. However, Specific Condition 14.b states in boldface: "All reclaimed bay swamps shall receive several inches of muck directly transferred from forested wetlands approved for mining." Specific Condition 14.b provides that wetland topsoil should be reasonably free of nuisance and exotic plant species before application to wetland mitigation areas. ERP Specific Condition 14.c requires IMC to grade reclaimed herbaceous and shrub marsh wetland areas after backfilling them with sand tailings and/or overburden and cap them with "several inches of wetland topsoil when available." Specific Condition 14.c provides that wetland topsoil should be reasonably free of nuisance and exotic plant species before application to wetland mitigation areas. ERP Specific Condition 14.d requires IMC to design marshes and wet prairies "to maintain the diversity of community types that existed prior to mining in order to support a wide range of wildlife species including birds, reptiles, and amphibians." Specific Condition 14.d requires IMC to reclaim marshes and wet prairies with variations in hydroperiod and slope "to provide the greatest diversity of available habitat," with marsh hydroperiods ranging from ephemeral through permanently flooded. Specifying a range of slope values, Specific Condition 14.d adds that most marshes shall have slopes gradual enough to support wide transition zones with a diversity of vegetation. ERP Specific Condition 14.d provides that IMC shall construct ephemeral marshes and wet prairies as identified in Figure 13B-8, which, discussed above, addresses the status of individual wetlands as connected, isolated, or isolated and ephemeral. Although not incorporated into the ERP, Table 13A1-4 indicates that IMC will mine 27 of the 29 ephemeral wetlands or 22 of the 27 acres of ephemeral wetlands, but will reclaim 44 ephemeral wetlands totaling 101 acres, as indicated on Table 13A5-1 2AI discussed above. ERP Specific Condition 14.e provides that at least half of all herbaceous and shrub marshes shall be rim mulched with several inches of wet prairie, pine flatwoods, or palmetto prairie topsoil, and IMC shall use direct transfer, where feasible. ERP Specific Condition 14.f requires IMC to use "several inches" of wet prairie, hydric pine flatwoods, or hydric palmetto prairie topsoil for all wet prairie and hydric palmetto prairie areas, and IMC shall use direct transfer, where feasible. However, instead of topsoiling, IMC may use "[o]ther innovative methods" that are likely to produce the same diversity of wet prairie forbs and grasses. ERP Specific Condition 14.g requires IMC to construct, in forested wetlands, hummocks several inches above the wet-season high water line. The hummocks shall be 8-12 feet long and 3-6 feet wide. To increase habitat heterogeneity, IMC shall place brushpiles, logs, and tree stumps in the reclaimed area, which it shall roughly grade in some areas. ERP Specific Condition 14.h requires IMC to construct streams in accordance with the Stream Restoration Plan. Specific Condition 14.h also requires IMC to employ an experienced stream restoration scientist, subject to BMR approval, to provide project oversight and conduct regular inspections during construction and planting. First appearing in the January submittal, the Stream Restoration Plan is a design document that specifies, in detail, the physical characteristics of each reclaimed stream. For each reclaimed stream or stream segment, the Stream Restoration Plan provides detailed information of physical structure; channel planform or shape; hydrologic characteristics in terms of such factors as storage, conveyance, and attenuation; geomorphic characteristics such as the substrate and floodplain soil types and the effects of flows upon these materials; vegetation along the stream corridor, including the addition of snags and debris dams to re-create natural microhabitats; construction supervision; and monitoring. The Stream Restoration Plan focuses upon the design of the basin, reach, and microhabitat of each reclaimed stream. For microhabitat, the Stream Restoration Plan promises that: the ecology of most of the reaches is expected to be improved through reclamation. For all reaches except 1e and 3e (which are wholly situated in generally native land cover), the forested riparian zone will be substantially increased since improved pasture adjacent to the stream channels will [be] replaced with forested canopy. Acknowledging the importance of small headwater streams to the overall integrity of a large watershed, the Stream Restoration Plan recognizes the hydrological and biological functions of the tributaries and their riparian wetlands--namely, flood conveyance, attenuation, and storage and aquatic and wetland habitat. Among other things, the Stream Restoration Plan repeatedly stresses the importance of achieving "rapid closure of the riparian canopies." In addition to providing habitat, a riparian canopy reduces solar heating of the stream, thus lowering the water temperature and minimizing weedy vegetation on the stream banks. Among the effects of lowering the water temperature is lowering the amount of water lost to evaporation. The installation of trees along and sometimes within the reclaimed channels will facilitate the rapid development of root systems to stabilize the substrate and provide submerged root structure, which is an important microhabitat for macroinvertebrates and fish. Mature trees in the floodplain also provide additional attenuation. In addition to serving as a design document to govern the reclamation of mined streams on OFG, the Stream Restoration Plan is also a descriptive document, detailing the relevant characteristics of the streams presently at OFG. The Stream Restoration Plan uses several classifications that are useful in analyzing streams and their functions. These classifications include the Rosgen classification of stream shape (the Rosgen classification of bottom sediment is irrelevant because all existing and reclaimed streams at OFG have sandy bottoms), the Strahler convention of stream orders, the duration of flow, and the channel morphology. The Rosgen classification of stream shape divides the streams at OFG into type E and type C. Type E streams are well- incised and hydraulically efficient; their width-to-depth ratios are less than 12:1. Shallower and wider than type E streams, as these values relate to each other, type C streams at OFG are often associated with small wetland riparian zones and depressions, which are absent from type E streams at OFG. The Strahler convention classifies streams based on their relative location in the upstream order of conveyances with the most-upstream streams classified as first-order streams. Except for Stream 2e and the Stream 1e series downstream of Streams 1eb and 1ef, all of the tributary streams on OFG are first-order streams, meaning essentially that they are the most upstream channelized conveyance receiving runoff or groundwater flow. Streams 2e, 1ec, 1ed, and 1ee are second- order streams, meaning that they receive flow from at least two first-order streams. In terms of flow, perennial streams receive groundwater flow throughout the year in most years, ephemeral streams flow sporadically in response to rain and typically lack groundwater inputs, and intermittent streams flow during the wet season in response to groundwater and rain inputs and during the dry season sporadically in response to rain inputs only. Most, if not all, of the tributary streams on OFG are intermittent. However, almost all of the streams cease to flow due to low rainfall and overflow their banks due to very high rainfall. Even Horse Creek dried up at State Road 64 during the low-rain conditions in 2000. In terms of morphology, all streams at OFG are either in uninterrupted channels or interrupted channels. Interrupted channels mean that the stream passes through flow-through marshes and swamps. Describing the existing streams in a slightly larger setting, the Stream Restoration Plan divides them into three groups, based on channel morphology and the vegetation and land uses adjacent to the channel. First, Streams 3e and 1e series are "surrounded by native habitat used for low-intensity cattle grazing. These are type C streams with a more diffuse riparian canopy and associated wetlands along the stream channel." Second, the portions of Streams 5e, 1w, 2w, 3w, 4w, 5w, 7w, and 9w within the floodplain forest of Horse Creek are type E streams with oaks and palmettos along, and often crowding, the channel. Third, the portions of the same eight streams that are outside of the floodplain forest of Horse Creek are type E streams, devoid of riparian vegetation and degraded by agricultural land uses, such as improved pasture and cattle grazing. The Stream Restoration Plan describes the Stream 1e series as follows: Reach 1e provides drainage for a series of interconnected flow-through wetlands punctuated by five relatively short stream segments. The segments represent a total of some 2,039 linear feet of channel. They have shallow, sandy banks with little vegetation in the stream channel. A wide riparian canopy of slash pine, laurel oak, dahoon holly and wax myrtle is present along most of this reach. The palmetto edge of the floodplain varies in width, but is generally more than 100 feet from either bank, suggesting frequent inundation. The channel substrate is sandy except where near a swamp, where it becomes increasingly more organic. Each flow-through wetland occurs in shallow depressions which overflow into C-type channels that are typically several hundred feet long. Key components of this conveyance type include the lip elevation at which wetland flow enters the channel and the elevation at which the streams dissipate their discharge to the downstream flow- through wetland. Most of the stream segments in this conveyance system appear to be in good geomorphic condition. Most of these channels typically have wetland and/or upland hardwood trees in the riparian zone with little understory. The Stream Restoration Plan reports that the channel of Stream 3e is in good geomorphic condition. The upper part of the channel flows through a scattered open canopy of trees with herbaceous cover in the riparian zone. The lower part of the channel mostly flows through treeless banks lined with palmettos. The channel has vegetation in it where it is exposed to sunlight. In other respects, Stream 3e is like Stream 1e series, except that the channel is uninterrupted and shorter. The length of Stream 3e is 611-630 feet. Stream 1eb is 486 feet, Stream 1ef is 223 feet, Stream 1ec is 315 feet, Stream 1ed is 283 feet, and Stream 1ee is 732 feet. The 2039-foot length of the Stream 1e series is exclusive of the system's headwater and flow-through wetlands. The Stream 1e series has the most linear feet of any tributary stream on OFG. In addition to the Stream 1e series and Stream 3e, the only other stream on the east side of Horse Creek to be mined is Stream 5e, which is an agriculturally disturbed stream with a narrow riparian canopy. The Stream Restoration Plan states that the lower portion of Stream 5e, which is within OFG, is in better condition than the upper portion, which is frequented by cattle and leads to a cattle pond and agriculturally altered wetland. However, in contrast to the Stream 1e series and Streams 6e, 7e, and 8e, Stream 5e is isolated in a vast monocommunity of improved pasture. The streams on the west side of Horse Creek have all been impacted by agricultural practices, mostly cattle ranching, ditching streams, sloughs, and other wetlands, and excavating cattle ponds in wetlands. The only streams entirely in the no- mine area on the west side of Horse Creek are Streams 8w and 6w, which are part of the Central and West Lobes, respectively. Relative to their surrounding communities, the streams on the west side of Horse Creek fall into three groups. Streams 6w and 8w are integrated into diverse communities of uplands and wetlands. Like Stream 5e, Streams 5w, 4w, 3w, and 2w are lonely departures from the monocommunity of improved pasture and, thus, attractors of thirsty or hot cattle. All of these streams have been impacted, to varying degrees, by ditching, which, with cattle disturbances, has led to unstable banks and erosion. Functionally, Streams 9w, 7w, and 1w are between these two groups. As a stream, Stream 9w is surrounded by improved pasture; however, it drains a large wet prairie surrounded by large areas of palmetto prairie to the south and west and sand live oak to the north and east. Prior to agricultural disturbance, Stream 9w was much higher functioning, at least with respect to flood conveyance, attenuation, and storage. At one time, this stream led upgradient to a long slough. After the slough was ditched to hasten drainage, the channel of Stream 9w suffered from excessive hydraulic forces, resulting in bank instability and a curious channel formation that fits the type E stream, even though the valley slope is consistent with other type C streams at OFG. Stream 9w is the second-shortest stream on OFG at 472 feet. Draining the smallest area of all tributaries on OFG (30 acres), Stream 7w lies between a large palmetto prairie to the north and improved pasture to the south. Stream 7w is the shortest stream on OFG at 456 feet. Stream 7w's upper section is characterized by unstable banks vegetated by pasture grasses. Stream 1w runs from Horse Creek through improved pasture, but enters a large palmetto prairie before draining a wetland that includes a relatively small bayhead. The upper half and extreme lower portions are in good condition with appropriate vegetation, but the channel is eroded in areas where it runs through pasture. IMC will reclaim the headwater wetland of Stream 1w with a large bayhead. ERP Specific Condition 14.i requires IMC to survey the final contours of each mitigation wetland to the precision of a one-foot contour. Within 60 days of final grading, IMC shall submit to BMR, for its approval, a topographic map and representative cross sections for each wetland and extending at least 200 feet into the adjacent uplands. IMC must also submit surveyed profiles and cross sections for all reclaimed streams. All topographic maps must meet the minimum technical standards of Chapter 472, Florida Statutes. ERP Specific Condition 14.j states that IMC shall assess the hydrology of the modeled wetlands through the installation of monitoring wells and staff gauges at mutually agreed-upon sites in these reclaimed wetlands. For at least two years after the final contouring of each wetland, IMC shall monitor the hydrology for the parameters listed in Table MR-2, which is described below. IMC shall submit the analysis to BMR within 30 days of its completion. If BMR does not approve the hydrology, IMC shall have 60 days to submit a remedial plan. ERP Specific Condition 14.k requires that freshwater marsh and ephemeral marsh vegetation shall develop from direct placement of donor topsoil or planting of herbaceous marsh species in the densities and numbers specified in the Freshwater Marsh and Wet Prairie/Ephemeral Marsh planting tables, so as to meet the requirements of ERP Specific Condition 16. Both tables require plantings on three-foot centers, or 4840 plants per acre, and specify suitable water levels for each species. The Freshwater Marsh planting table lists 22 approved species, and the Wet Prairie/Ephemeral Marsh planting table lists 35 approved species. ERP Specific Condition 14.l requires IMC to plant the uplands surrounding wet prairies with collected native grass seed, such as creeping bluestem, sand cordgrass, blue maidencane, bluestem, lovegrass, and eastern gamma grass, to prevent invasion by non-native or range grasses. ERP Specific Condition 14.m provides that IMC shall develop shrub marsh vegetation by directly placing donor topsoil at the location of the reclaimed shrub marsh and planting herbaceous and shrub marsh species in the densities and numbers specified in the Shrub Marsh planting table, so as to meet the requirements of ERP Specific Condition 16. The Shrub Marsh planting table requires IMC to plant herbaceous species on three-foot centers, or 4840 plants per acre, and shrub species at an average density of 900 plants per acre. The planting table lists 18 approved species and requires IMC to plant at least five different shrub species. The planting table also specifies suitable water levels. ERP Specific Condition 14.n provides that IMC shall plant forested wetlands in the densities, species richness, and dominance specified in the Bay swamp/Gumswamp/Hydric Oak Forest/Wet Pine Flatwoods/Mixed Wetland Hardwood/Mixed Forest Swamp, "as appropriate for each community type" to meet the requirements of ERP Specific Condition 16. IMC shall plant appropriate species based on the design elevations, hydrology monitoring, and mitigation goals. ERP Specific Condition 14.o provides that IMC shall plant shade-tolerant herbaceous species after establishing suitable shade, by year 7, in hardwood swamps, mixed forest swamps, and bay and gum swamps. Specific Condition 14.o states: "At least 5 of the species listed in the Tables in n above and others like goldenclub . . . and swamp lily . . . shall be planted." The items listed in Specific Condition 14.n, however, are communities, not species. ERP Specific Condition 15 requires IMC to implement a monitoring and maintenance program to promote the survivorship and growth of desirable species in all mitigation areas. ERP Specific Condition 15.a requires IMC to conduct "quarterly or semi-annual" inspections of wetlands for nuisance and exotic species. IMC shall control these species by herbicide, fire, hydrological, or mechanical means "to limit cover of nuisance species to less than ten (10) percent and to remove exotic species when present in each created wetland." IMC must annually use manual or chemical treatment of nuisance and exotic species when their cover in any area of at least one acre is greater than ten percent or any exotic species are present. IMC must use manual or chemical treatment if cogongrass covers more than five percent within 300 feet of any reclaimed wetland. ERP Specific Condition 15.b allows IMC to control water levels with outflow control structures and pumps, as needed to enhance the survivorship and growth of sensitive taxa. However, IMC must remove all water management structures at least two years prior to requesting release. ERP Specific Condition 15.c requires IMC to make supplemental tree and shrub plantings, pursuant to Specific Condition 14, when tree/shrub densities fall below those required in ERP Specific Condition 16. Specific Condition 15.d requires IMC to make supplemental herbaceous plantings, pursuant to ERP Specific Condition 14, when cover by a "diversity of non- nuisance, non-exotic wetland species as listed in Chapter 62-340.450, F.A.C.," falls below that required in ERP Specific Condition 16. ERP Specific Condition 16 provides the conditions for DEP to release IMC of further obligation for reclaimed wetlands. DEP shall release the 105 acres of reclaimed forested wetlands and 217 acres of herbaceous wetlands when IMC has constructed them in accordance with the ERP requirements; IMC has not intervened, for two consecutive years (absent BMR approval), by irrigating, dewatering, or replanting desirable vegetation; and the remaining requirements of ERP Specific Condition 16 have been met. IMC must indicate in its annual narrative, which is required by Specific Condition 5, the start date for the non- intervention period. ERP Specific Condition 16.A requires that the water quality meet Class III standards, as described in Florida Administrative Code Chapter 62-302. ERP Specific Condition 16.B addresses water quantity. ERP Specific Condition 16.B.1 requires each created wetland to have hydroperiods and inundation depths sufficient to support wetland vegetation and within the range of conditions occurring in the reference wetlands of the same community for the same period, based on the monitoring data developed in accordance with ERP Specific Condition 14.j. Tributary wetlands must have seasonal flow patterns similar to specified reference wetlands for the same period. ERP Specific Condition 16.B.2 states that IMC modeled 24 representative reclaimed wetlands that IMC has modeled during the application process to predict subsurface conditions after excavation and backfilling. Figure 13-3 depicts these modeled wetlands, which are within 13 wetland complexes, and the proposed transects. All of the modeling transects are aligned east-west, which is the direction of groundflow. As discussed in detail below, the primary hydrological model used by Dr. Garlanger requires an input for the length of the upland in terms of the distance from the basin divide to the riparian wetland. Therefore, the transects probably must run in the direction of groundwater flow. Absent an ability to model the hydroperiod and inundation depth of a wetland across a sand tailings valley and cast overburden plateau--i.e., in a north-south direction-- multiple east-west transects in wetlands with long north-south dimensions would better reveal whether the wetland design were adequately accounting for the alternating pattern of sand tailings valleys and cast overburden plateaus. For all the areas for which Map H-1 provides probable orientations of spoil piles--basically, for present purposes, everywhere but Section 4--the spoil piles are oriented in the same alignment as the transects, so the transects will not cross the sand tailing valleys/cast overburden peaks. In other words, each of the transects will run along the portion of each wetland for which the relative depths of sand tailings and cast overburden remain constant, avoiding the potentially more problematic situation of alternating rows of sand tailing valley and cast overburden peak. As noted below, the north-south dimension of W039 assures that one cast overburden spoil pile and part of another will underlie W039. The north-south dimensions of W003 and E046/E047 also are long enough to guarantee significant alterations in geology. ERP Specific Condition 16.B.2 requires that, prior to the construction of the modeled 24 wetlands, IMC shall reassess and, if necessary, modify their design. The modifications shall be based on the targeted hydroperiods and inundation depths set forth in Table 1, which is described below, and updated analysis from an "integrated surface and ground water model that has been calibrated to actual field conditions at the location of the wetland to be constructed." Lastly, ERP Specific Condition 16.B.2 requires IMC to use a similarly calibrated model to design the other reclaimed wetland, so that they achieve the targeted hydroperiods and inundation depths set forth in Table 1. For the 24 modeled wetlands, Table 1 identifies eight types of wetland community, prescribes hydroperiods and inundation depths for each wetland habitat, and projects a hydroperiod for each of the 24 modeled wetlands. As amended at the hearing for bay swamp hydroperiods, the hydroperiods and inundation depths for the wetland communities are: bay swamps-- 8-11 months with inundation depths of 0-6 inches; gum swamps-- 3-12 months with inundation depths of 0-12 inches; mixed wetland hardwoods and wetland forested mix--3-9 months with inundation depths of 0-6 inches; hydric pine flatwoods--1.5-4.5 months with inundation depths of 0-6 inches; freshwater marshes--7-12 months with inundation depths of 6-30 inches; wet prairies--2-8 months with inundation depths of 0-6 inches; and shrub marshes--7-12 months with inundation depths of 6-24 inches. The 24 reclaimed wetlands to be modeled include three bay swamps: W039, which is the headwater wetland of Stream 1w; E008, which is a small part of the wetland into which Streams 1eb and 1ef drain; and E063, which is a small bay swamp in the middle of Stream 5e. The only other bay swamps to be reclaimed are E007, which is a small part of the wetland into which Stream 1ec drains, and W036, which is in the center of Section 19 and drains offsite into West Fork. The only other modeled wetlands that are part of the riparian wetlands of Stream 1e series are E007 and E009, which are near E008 and are the only hydric pine flatwoods to be modeled. The only other hydric pine flatwoods to be reclaimed is E015, which is also part of the riparian wetlands of Stream 1e series. Other modeled wetlands of particular importance are W003, which will be a large wet prairie wetland serving as the headwater wetland of Stream 9w; W031, which will be the freshwater marsh serving as the headwater wetland of Stream 3w; E018, E046, and E057, which are wet prairie fringes; E018, E042, E046, and E057, which are ephemeral wetlands (E042 is the only modeled ephemeral wet prairie that is not a fringe wetland); and all of the connected wetlands of Streams 3e and 3e?: E024, which is a wetland forested mix that is the riparian wetland along Stream 3e; E023, which is a freshwater marsh immediately upstream of E024; E022, which is a mixed wetland hardwoods joining the upstream side of E023; E018, which is a wet prairie fringing the headwater wetland of Stream 3e?; E019, which is a shrub marsh (the only modeled shrub marsh) fringed by E018; and E020, which is a freshwater marsh joining E019 and also fringed by E018. ERP Specific Condition 16.B.3 states the IMC shall monitor the 24 modeled wetlands, as prescribed by ERP Monitoring Required Section D and Table MR-2, which are discussed below. ERP Specific Condition 16.B.4 requires that the ephemeral wetlands shall remain inundated no more than eight months per year during a normal water year, which is between the 20th and 80th percentiles of historical record in terms of total rainfall and major storm occurrence. ERP Specific Conditions 16.C.1 and 2 apply to all mitigation areas within the scope of the ERP. Specific Condition 16.C.1 requires that non-nuisance, non-exotic wetland species listed in Florida Administrative Code Rule 62-340.450 cover at least 80 percent of the groundcover or attain the range of values documented in specific reference wetlands of the target community. Desirable groundcover plant species must be reproducing naturally. ERP Specific Condition 16.C.2 provides that nuisance vegetation species, such as cattail, primrose willow, and climbing hemp vine, shall cover less than 10 percent of the total wetland area. Invasive exotic species, such as melaleuca, Chinese tallow, and Brazilian pepper, shall not be considered as an acceptable component of the vegetative community. For herbaceous marshes, ERP Specific Condition 16.C requires that native species typical of the reference marshes dominate the cover and that they be distributed in zonation patterns similar to reference marshes. Species richness and dominance regimes shall be within the range of values documented within the reference marshes. For wet prairies, ERP Specific Condition 16.C requires that native species typical of the reference wet prairies dominate the cover. Species richness and dominance regimes shall be within the range of values documented within the reference wet prairies. Range grasses, such as bahiagrass and Bermuda grass, shall cover, in total, less than 10 percent of the wet prairie. For shrub marshes, ERP Specific Condition 16.C requires that native species typical of the reference shrub marshes dominate the cover. Carolina willow and wax myrtle shall cover, in total, less than 30 percent of the marsh. For all forested wetlands, ERP Specific Condition provides that the forested canopy shall have an average of at least 400 live trees per acre that are at least 12 feet tall, except for cabbage palms, which shall have a leaf, including the stalk, that is at least three feet long. In the alternative, the forested canopy shall meet or exceed the range of canopy and sub-canopy tree densities in specified reference wetlands. No area greater than an acre shall have less than 200 trees per acre. Hydric pine flatwoods shall average 50 trees per acre. For all forested wetlands, ERP Specific Condition provides that the shrub layer shall average at least 100 shrubs per acre or shall meet or exceed the range of shrub densities in specified reference wetlands. Early successional species, such as Carolina willow, saltbush, and wax myrtle, do not count in meeting this density requirement, but the monitoring reports shall include such species. Hydric pine flatwoods shall have an average density of 350 shrubs per acre, and the primary species shall be typical of hydric pine flatwoods, such as saw palmetto, gallberry, and fetterbush. For all forested wetlands, ERP Specific Condition states that the canopy and shrub strata shall each have the species richness values and dominance regimes within the range of values in specified reference wetlands/floodplains of the target community. Canopy and shrub measurements are limited to those indigenous species that will contribute to the appropriate strata of the mature forested wetlands/floodplains. Up to half of the trees and shrubs in the upper transitional zone may consist of appropriate upland and facultative species, as found in specified reference wetlands. Desirable canopy and shrub species shall be reproducing naturally. For all forested wetlands, ERP Specific Condition provides that herbaceous vegetation shall have the species richness values and dominance regimes within the range of values in specified reference wetlands/floodplains of the target community. In making this evaluation, DEP shall consider the relative age of the mitigation site, as compared to specified reference wetlands. ERP Specific Condition 16.D.1 requires that all stream banks be stable, subject to normal erosion and deposition zones, as evidenced by the conformance of the stream with the applicable Rosgen type C or E, as described in the appropriate reference streams. ERP Specific Condition 16.D.2 requires that the physical characteristics of the reclaimed stream conform to its design. ERP Specific Condition 16.D.3 requires that tree roots, log jams, snags, and other instream structure shall be present at desirable intervals along the reclaimed stream. ERP Specific Condition 16.D.4 provides that species diversity and richness of the macroinvertebrate community shall be within the range of values documented in the reference streams or reported values of similar streams systems in central Florida. Also, all functional feeding guilds of macroinvertebrates found in the reference streams shall be present in the reclaimed streams. In the alternative, IMC may show that the reclaimed stream has met the minimum thresholds for the "good" classification in DEP's Stream Condition Index for macroinvertebrates and habitat quality. ERP Specific Condition 16.E provides that, throughout OFG, at least 105 acres of reclaimed forested wetlands and 217 acres of reclaimed herbaceous wetlands shall be determined to be wetlands or other surface waters. IMC shall achieve the minimum acreage for each wetland, as indicated on Map I-2 and associated figures and tables. However, IMC may make minor changes in the size, shape, or location of individual reclaimed wetlands, subject to BMR's approval. ERP Specific Condition 17 provides that DEP shall release IMC from further obligation regarding mitigation when ERP Specific Condition 16 has been met. IMC initiates the release procedure by notifying DEP that IMC believes the mitigation is ready for release, but this notice may not be earlier than two years after the completion of mitigation. DEP must respond within 120 days. ERP Specific Condition 17.d provides: "[DEP] may release the mitigation wetlands based on a visual evaluation, notwithstanding that all the requirements of Specific Condition 16 have not been met." ERP Specific Condition 18 applies to the surface water management system. The system must conform to the plans, specifications, and performance criteria approved by the ERP. ERP Specific Condition 19 requires IMC clearly to identify all no-mine areas in the field within two years of the issuance of the ERP. ERP Specific Condition 20 states that BMR will review the ERP at the end of the first five-year term after its issuance and at the end of each succeeding five-year term, if any. The purpose of the review is to determine compliance with general and specific conditions, including monitoring requirements. BMR staff shall quarterly inspect the mine for compliance with these requirements. ERP Specific Condition 21 requires IMC to provide a phased Conservation Easement, in favor of DEP, on 525 acres of OFG, as depicted on Figure F-6. Figure F-6 shows two easement areas. Phase A, which is 372 acres, corresponds to the 100-year floodplain of Horse Creek. Phase A is in the no-mine area. Phase B, which is 153 acres, is a wider band running along both banks of the northernmost 1 1/2 miles of Horse Creek and mostly on only the west bank for the southernmost 2 miles of Horse Creek. Phase B consists of part of the reclaimed area. The corridor covered by both phases of the Conservation Easement is generally not wider than 1000 feet and thus does not capture all of the non-improved pasture upland communities reclaimed on either side of Horse Creek and described above. IMC is required to grant the Conservation Easement on the Phase A lands within six months of the issuance of the ERP. IMC is required to grant the Conservation Easement on the Phase B lands within six months of the release by DEP of IMC from further obligations regarding reclamation and mitigation. ERP Specific Condition 21 incorporates the Conservation Easement and Easement Management Plan. The Conservation Easement implicitly acknowledges the fact that IMC is contractually obligated to convey OFG back to the Carlton- Smith family, after IMC has been released from further obligations regarding reclamation and mitigation. Thus, post- mining, OFG will return to its historic agricultural uses-- mostly, cattle ranching. The restrictions and encumbrances included in the Conservation Easement are designed to provide some protection to the wetlands, streams, and uplands within the Phase A and Phase B areas. Granted to the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, for which DEP serves as an agent, the Conservation Easement allows IMC and its successors, including the Carlton-Smith family, to use the encumbered property for cattle ranching, but only to the extent consistent with "sustainable native range management practices." These sustainable native range management practices require, among other things, the natural renewal of the grazing capacity of the land by allowing native grasses and other native forage species to regenerate. The Easement Management Plan contemplates prescribed burns of portions of the corridor. The Conservation Easement also allows IMC and its successors, upon obtaining the necessary permits, to construct a commodious 200-foot wide accessway across the encumbered property for a road, pipelines, draglines, and/or utilities. ERP Specific Condition 22 requires IMC to enhance 80 acres of existing pastureland within several areas of the Horse Creek floodplain, as indicated on Figure F-5, which is Habitat Enhancements. Most of the depicted enhancement areas are on OFG, but two of them are a short distance from OFG. ERP Specific Condition 22 requires IMC to plant 100 longleaf pines and/or oaks per acre within several sites, covering 80 acres of existing pastureland, adjacent to the 100-year floodplain of Horse Creek. Most of the sites are on the west bank of Horse Creek, mostly south of the Lobes, but a couple of sites are on the east bank in the vicinity of the East Lobe. ERP Specific Condition 23 requires that IMC plant these areas within one year of the issuance of the ERP and that the overall survival rate be at least 80 percent, as of the time of the release of the last mitigation parcel. ERP Specific Condition 23 requires IMC to enhance existing xeric and scrub habitats within areas designated as ACI (Area of Conservation Interest)-2, ACI-4, and ACI-6, as depicted on Figure F-5. Specific Condition 23 states that IMC shall enhance the wildlife habitat of these areas by performing controlled burns, cutting overgrown trees, planting desirable species, and controlling nuisance and exotic species. Specific Condition 23 obligates IMC to complete these enhancements within three years of the issuance of the ERP. ACI-2 is about 1 1/2 miles west-southwest of the southern end of OFG, between State Road 64 and the West Fork. ACI-2 consists of about 60 acres of overgrown xeric habitat, featuring 40 acres of sand scrub, predominantly sand live oak. Gopher tortoises occupy ACI-2 at a density of about 1.6 reptiles per acre. Florida mice occupy ACI-2 at a density of 0.4 rodents per acre, meaning that only 15-25 Florida mice may occupy ACI-2. By fence-posting overgrown sand pine and sand live oak and conducting a prescribed burn, IMC will reduce the heavy canopy existing on ACI-2 and enhance the suitability of ACI-2 for gopher tortoises and Florida mice. IMC will also apply herbicides to nuisance exotic species, such as bahiagrass, after which IMC will direct seed the flatwoods on the site with suitable vegetative species. Following this work, IMC may relocate Florida mice from OFG to ACI-2, upon approval from the FWC. ACI-6 is about one mile east of the southern end of OFG. ACI-6 consists of about 421 acres of a mixture of open land and overgrown oak scrub. Gopher tortoises occupy ACI-6 at densities ranging from 0.7 to 1.8 animals per acre. After fence-posting overgrown oaks and sand pine, conducting prescribed burns, installing fencing to exclude cattle and feral hogs, applying herbicide to kill exotic species, and direct seeding appropriate vegetation, IMC may relocate Florida mice from OFG to ACI-6, upon approval from FWC. ACI-4 consists of about 82 acres at the eastern end of the East Lobe and is within the no-mine area. The western end of ACI-4 slopes to the west through a bahia pasture before it enters a large bay swamp at the western end of the East Lobe. This area has been impacted by partial clearing and the depositing of animal carcasses--the latter practice yielding the name assigned to this area, the "boneyard" scrub. ACI-4 is dominated by mature scrub oaks. Gopher tortoises occupy ACI-4 at the rate of 0.85 terrestrial turtles per acre, and gopher frogs frequent the mouths of tortoise burrows at the site, although no signs of Florida mice exist. After conducting enhancement activities similar to those to be conducted on the other ACIs, IMC intends to create and maintain more suitable habitat for Florida mice. Specific Condition 23 states that IMC shall enhance 25 acres of pasture on ACI-4 by planting 100 longleaf pines and/or oak trees, and IMC shall manage these areas to achieve an overall survival rate of 80 percent through release of the final reclamation parcel. ERP Specific Condition 24 notes that IMC has committed to initiate the management and evaluation of amphibians, including the Florida gopher frog, and shall adhere to the management plans outlined in the IMC Minewide Gopher Tortoise and Burrow Conceptual Management Plan that FWC has examined, but not yet approved. IMC shall expend at least $30,000 to compare amphibian use of reclaimed and unmined wetlands. IMC shall include progress reports as to this study with its annual narrative reports required under Specific Condition 4. ERP Specific Condition 25 incorporates Tables 2AI-1 and 2AI-2 to provide assurance that IMC has sufficient sand tailings for the timely reclamation of wetlands contemplated in the ERP. Table 2AI-1 is the IMC Overall Sand Balance. Table 2AI-2 is the [OFG] Sand Balance. Table 2AI-1 shows the sand tailings production of IMC's Four Corners and Ft. Green mines from 2004-2014 and assumes an initial mining year of 2006 for OFG. For each of these 11 years, Four Corners produces 27,000,000 tons of sand tailings. For the first seven of these years, Ft. Green produces 17,000,000 tons of sand tailings. During these 11 years, IMC needs anywhere from 13,300,000 to 54,900,000 tons of sand tailings to meet all of its reclamation obligations. The closest that IMC will come to exhausting its sand tailings stockpile will be in year 6 of the OFG mining operation (2011, if OFG mining starts in 2006). For this and the following year, the sand tailings stockpile will total 300,000 tons. By this time, IMC's requirements for sand tailings begin to taper off, so that, by the final year on the schedule (2014), the sand tailings stockpile increases to 20,600,000 tons. Table 2AI-2 shows that IMC can meet its reclamation obligations for the Ft. Green Mine and OFG without using any stockpiled sand tailings. The next section of the ERP is Monitoring Required. The designations for this section start with a letter. As its name suggests, ERP Monitoring Required describes the monitoring program. The presence of monitoring does not imply the presence of standards or criteria applicable to what is monitored or the presence of a remedy or sanction for noncompliance with any standard or criterion. The existence of this section of the ERP does not mean that other sections of the ERP may impose monitoring requirements, applicable standards and criteria, and remedies or sanctions for noncompliance. ERP Monitoring Required A.1 requires IMC to submit annual narrative reports to BMR detailing the progress of the restoration program identified in ERP Specific Condition 4. As required in ERP Specific Condition 5, IMC shall submit to BMR hydrology reports annually and vegetation reports annually for the first three years and every other year thereafter, until release. At least 60 days prior to sampling, ERP Monitoring Required A.2 requires IMC to submit, for agency approval, vegetation, hydrology, and macroinvertebrate monitoring plans detailing sampling techniques and locations. ERP Monitoring Required A.3 requires IMC to include in its annual hydrology reports the daily rainfall amounts for the Ft. Green and OFG gauges shown on Map D-4. ERP Monitoring Required A.4 states that, if BMR determines that restoration efforts are not trending toward achievement of the release conditions set forth in ERP Specific Condition 16, IMC shall have 30 days from notification to submit proposed corrective actions. IMC shall implement corrective actions within 90 days of their approval. ERP Monitoring Required B states that data compiled in the CDA will be the primary source of reference wetland information. IMC shall then collect additional stage and hydroperiod data from the modeled wetlands. Within one year of the issuance of the ERP, IMC shall submit to BMR, for approval, a proposed sampling plan, including locations, frequencies, and vegetation, hydrology, and macroinvertebrate sampling methods. ERP Monitoring Required B provides that IMC shall select several wetlands of each community and submit them to BMR for approval. It appears that this process has already been completed, and DEP should updated ERP Monitoring Required B by incorporating into the ERP Figure RF-1, which, although not presently incorporated into the ERP, identifies 26 reference wetlands on OFG and nine reference wetlands on the original Ona Mine to the east of OFG. These reference wetlands include the most important components of the Lobes, the Heart-Shaped Wetland, Stream 2e's riparian wetlands, several wetlands in the Stream 1e series, the headwater wetland of Stream 3e, isolated wetlands south and east of the headwater wetland of Stream 3e, parts of the headwater wetland of Stream 1w, and the riparian and headwater wetlands of Stream 8e. As noted below, the riparian and headwater wetlands of Stream 8e, which are selected as reference wetlands, are moderate functioning, but the riparian and headwater wetlands of Stream 7e, which are not selected as reference wetlands, are high and very high functioning. ERP Monitoring Required C is Compliance Monitoring. Monitoring Required C.1 provides that IMC shall submit water quality data with the annual narrative reports submitted pursuant to ERP Specific Condition 7. All monitoring reports must include specified information, such as the dates of sampling and analysis and a map showing sampling locations. ERP Monitoring Required C.2 states that IMC shall submit hydrology data with its annual narrative reports. ERP Monitoring Required C.3 states that IMC shall monitor water levels in wetlands in no-mine areas in accordance with Table MR-1, which is described below. ERP Monitoring Required C.4 notes that IMC shall measure and report surface water flows in accordance with ERP Specific Condition 10. IMC must include in its reports to BMR all U.S. Geologic Service data collected at State Road 64 and State Road 72, which is south of State Road 64, and rainfall data collected by the U.S. Geologic Service, Southwest Florida Water Management District, and IMC. The annual hydrographs for Horse Creek at State Road 64 and State Road 72 "should" be similar. IMC must obtain and report hydrological data from 30 days after the issuance of the ERP until three years after the hydrological reconnection of the last reclaimed area upstream of a water level monitoring location. Within 60 days of the receipt of such data, BMR shall notify IMC of any changes to mining or reclamation that are necessary, and IMC shall have 60 days to respond to this notice. ERP Monitoring Required C.5 grants IMC a 50-meter temporary mixing zone adjacent to construction and in waters of the state; provided, however, this mixing zone is in effect only during the construction of the pipeline crossing just downstream of the Heart-Shaped Wetland. IMC must halt construction if monitoring reveals that turbidity at the site is more than 29 NTUs above upstream locations. ERP Monitoring Required C.6 states: "Compliance Monitoring Summary--See Table MR-1." Table MR-1 is discussed below, in connection with Table MR-2. ERP Monitoring Required D is Release Criteria Monitoring. Applying to vegetation, Monitoring Required D.1 provides that IMC shall conduct all monitoring of herbaceous vegetation during or immediately after the summer growing season. Monitoring Required D.1 requires the reports to include a description of collection methods and location maps. IMC must report data separately for individual wetlands. IMC must report separate density and cover information for trees, shrubs, and groundcover, as well as information about any supplemental planting. Applying to water quantity, ERP Monitoring Required D.2 provides that IMC shall submit water quantity data with its annual narrative reports, as required in ERP Specific Condition 4. IMC shall collect onsite daily rainfall data at OFG. ERP Monitoring Required D.3 requires: "Soils, macroinvertebrates and stream channel integrity/morphology shall be monitored as described in Table MR-2." ERP Monitoring Required D.4 states: "Release Monitoring Criteria Summary--See Table MR-2." Tables MR-1 and MR-2 refer to the monitoring required for compliance and release, respectively. The identification of these tables as "summaries" and the vague references to them in ERP Monitoring Required C.6 and D.4 suggest that the tables do not contain any performance standards and may imply that, except for the asterisked notes in Table MR-1, they summarize all of the performance standards and criteria contained in the ERP. If summaries, the tables should not introduce new elements, but they do just that with respect to the methods, sampling schemes, and frequency of monitoring. For water quantity monitoring, for instance, Table MR-2's promise of weekly readings of monitoring wells and piezometers for part of the year conflicts with the monthly reading required in ERP Specific Condition 10.b. If summaries of performance standards and criteria, the tables should capture all of the compliance and release criteria, but they do not. For water quality, for example, Table MR-2, which is limited to five parameters, potentially conflicts with ERP Specific Condition 16.A's broad assurance of compliance with Class III water quality standards, which encompass a broad range of parameters, including iron. For water quantity, Table MR-2 also omits the enforceable streamflow criteria of ERP Specific Condition 10.b. For soil, Table MR-2 includes one parameter--litter accumulation--for which no corresponding criterion exists and includes substrate-- for which important criteria exist as to the depths of sand tailings, topsoil, green manure, and muck--but omits any release criteria. Addressing two of the most important parts of the ERP--monitoring and performance criteria--these tables must be interpreted as subordinate to the remainder of the ERP, so that if they conflict with another ERP provision, the other ERP provision controls, but if they add a requirement not elsewhere found in the ERP, the requirement applies to the proposed activities. Table MR-1 is the Compliance Monitoring Criteria Summary. Table MR-1 identifies two monitoring parameters: water quality and water quantity. Asterisked notes state that the Table MR-1 requirements for water quality are in addition to those set forth in Specific Condition 7, which are discussed above, and the Table MR-1 requirements for water quantity are in addition to those set forth in Specific Condition 10.b, which are discussed above. For water quality, Table MR-1 addresses only turbidity. The compliance criterion is the Class III standard. The "proposed methods" are for IMC to monitor water, at mid- depth, 50 meters upstream and downstream from the point of severance and reconnection of each wetland. The frequency of monitoring is daily during severance or reconnection or during pipeline corridor construction or removal. The duration of monitoring is at least one wet season prior to mining, during mining, and through contouring. For water quantity, Table MR-1 addresses water levels, flow, hydrographs, soil moisture, and plant stress. The compliance criteria are soils sufficiently moist to support wetland vegetation and prevent oxidation and water levels in recharge ditches sufficient to simulate normal seasonal fluctuations of water in adjacent wetlands and other surface waters. The "proposed methods" are for IMC to install staff gauges, monitoring wells, piezometers, and flow meters in recharge ditches and wetlands in the no-mine area and at the point that the 100-year floodplain of Horse Creek intercepts the unmined portions of Streams 2e, 6e, 7e, 8e, 9e, 6w, and 8w. The frequency of monitoring is to check rainfall and recharge ditches daily, staff gauges in streams "continuously," and monitoring wells and piezometers weekly. The duration of monitoring is at least one wet season prior to mining, during mining, and through contouring. Table MR-2 is the Release Monitoring Criteria Summary. Table MR-2 identifies five monitoring parameters: water quality, water quantity, stream channel integrity and morphology, soils, and vegetation. For water quality, Table MR-2 addresses dissolved oxygen, turbidity, temperature, pH, conductivity, and, for all streams, all of the parameters in ERP Specific Condition 7.a. The compliance criteria are Class III standards. The locations are at or near the connection of wetlands in the no-mine area and at or near vegetative transects in streams and representative wetlands. The frequency is monthly from May to October prior to the reconnection to wetlands in the no-mine area and monthly from May through October of the year prior to the release request. The duration of monitoring is at least two years after the completion of contouring. For water quantity, Table MR-2 addresses water levels, flow, hydroperiod, rainfall, and hydrographs. The release criteria are values within the range of values documented in specified reference wetlands for each community type and, for hydroperiods and water levels, within the range of values predicted by modeling. The "proposed methods" are the same instruments identified for water quantity in Table MR-1. The locations for sampling are at or near the connection to wetlands in the no-mine area and at representative locations, including the deepest depths, of several representative wetlands of each community type. The frequency of monitoring is to check rainfall daily, staff gauges in streams "continuously," monitoring wells and piezometers weekly from May through October and monthly from November through April, and flow at sufficiently frequent intervals to generate rating curves for the streams. The duration of monitoring is at least two years after the completion of contouring. For stream channel integrity and morphology, Table MR-2 addresses channel stability and erosion, channel sinuosity channel profile, and cross sections. The release criteria are: "Stable channel and banks, no significant erosion, or bank undercutting, stream morphology within the range of values appropriate for the designed stream type (Rosgen C or E)." The location of sampling is over the entire channel length and representative cross sections. The frequency of monitoring for channel stability and erosion is after "significant" rain events for at least the first two years after contouring. The frequency of monitoring for channel sinuosity, channel profiles, and cross sections is years 2, 5, and 10. For soils, Table MR-2 addresses substrate description, litter accumulation, and compaction, but lists no release criteria. For vegetation, Table MR-2 addresses the species list and percent cover, FLUCFCS Level III map, percent bare ground and open water, nuisance species cover, upland species cover, tree density, shrub density, tree height, tree breast height diameter starting in year 5, and fruit and seedlings (starting in year 7). The release criteria are 400 trees per acre that are 12 feet tall, 100 shrubs per acre, species richness and diversity within the range of reference forested and herbaceous wetlands, 80 percent groundcover, and less than ten percent nuisance species. The location of sampling is randomly selected sites along several transects across each wetland, and the frequency of monitoring is years 1, 2, 3, 5, and every other year through the year prior to release. For macroinvertebrates, Table MR-2 addresses the number and identity of each taxon, diversity, functional feeding guilds, and the DEP Stream Condition Index. The release criteria are: "Species diversity, richness within range of reference wetlands, all functional feeding guilds or qualify as 'good' or better in the SCI." The location of sampling is in at least one representative 100-meter reach in each stream, and the frequency is at least twice yearly for at least the year prior to the release request for a stream. CRP The introductory CRP narrative describes IMC's plans to reclaim uplands, but does not impose any obligations upon IMC. Instead, the narrative introduces the reclamation project and summarizes the provisions of the general and specific conditions of the CRP. The failure to incorporate Map I-2, whose wetlands were incorporated by the ERP, and Map I-3 is material. CRP General Conditions 8, 9, and 10, discussed below, impose upon IMC certain requirements when reclaiming certain communities, but do not themselves impose the requirement of reclaiming these communities. The same is true for CRP Specific Condition 8. The only subcondition mentioning Map I-2 is Specific Condition 8.c, which alludes to Map I-2 while imposing upon IMC the reclamation technique of backfilling at least 15 inches of sand tailings upon those areas to be reclaimed as temperate hardwoods, live oak, and hardwood-conifer mixed. If this indirect reference imposes upon IMC the obligation of reclaiming these three upland forests pursuant to their depiction on Map I- 2, it is odd that Specific Conditions 8.a and 8.b fail even to mention Map I-2 in their discussion of the sand tailing and topsoil requirements for reclaimed pine flatwoods and sand live oak and xeric oak, especially when these three upland forest communities account for over 400 acres of reclaimed uplands, according to Table 12A1-1, which is also not incorporated into the CRP. The narrative portion of the CRP states that IMC's reclamation plan is to create 1769 acres of pasture, 50 acres of herbaceous, shrub, and mixed rangeland, 273 acres of palmetto prairie, 194 acres of pine flatwoods, 33 acres of xeric oak, 43 acres of temperate hardwood forest, 39 acres of live oak forest, 196 acres of sand live oak forest, and 550 acres of hardwood- conifer mixed forest. The CRP notes that most of the communities in the no-mine area, enhanced areas, and reclaimed communities will form part of a "larger mosaic of diverse upland and wetland habitat associated with Horse Creek and will serve as important wildlife corridors." The failure of the CRP approval to incorporate Map I-2 is an oversight. In the introduction to the January submittal, IMC proposed to reclaim the uplands, by community and area, as enumerated in Table 12A1-1, and, by community and location, as depicted on Map I-2. The failure to incorporate Map I-3 is probably an oversight, based on the second CRP narrative quoted below. The CRP narrative states that IMC has developed a Habitat Management Plan (HMP), which includes detailed pre- mining wildlife surveys and relocation programs. The narrative states that IMC will relocate, disturb the habitat of, and reclaim habitat for Florida mice, gopher tortoises, gopher frogs, and other commensals, pursuant to approvals from FWC. The narrative reports that IMC's Indigo Snake Management Plan has already received approval from the required agencies. Also, IMC will spend at least $30,000 to fund research on the potential of relocating burrowing owls onto reclaimed landscapes and at least $30,000 to analyze amphibian use of natural and reclaimed wetlands. However, the ERP and CRP approval incorporate only parts of the HMP. The CRP narrative adds: In addition to wetlands, a significant portion of the reclamation plan will focus on wildlife habitat through the creation of a diversity of upland habitat types adjacent to the Horse Creek corridor. This will provide a contiguous corridor averaging half a mile wide. IMC has committed to reclaim significant areas of pine flatwoods, palmetto prairie, sand live oak, and other upland habitats well beyond what is required by existing reclamation rules. This will be accomplished mainly through topsoiling and planting of a diversity of native species including shrubs and groundcover species. The use of exotic forage grasses will be minimized and native grass species will be emphasized in the groundcover of reclaimed upland habitat areas. A diversity of shrubs will also be planted in reclaimed upland forest areas. In addition, most of the mitigation wetlands will be created with diverse upland habitats surrounding them, resulting in enhanced wildlife and water quality functions. The CRP narrative addresses reclaimed soils: Special emphasis has also been placed on improving post reclamation soils. . . . Emphasis has been placed on restoring soils to more closely mimic native soils and existing soil horizons by making greater use of native topsoil and incorporating a greater percentage of sand at the surface. Green manure will be incorporated into surface soils where native topsoil is not used. In most cases, existing overburden spoil piles will be graded down and then capped with several feet of sand tailings. The thickness of the sand layer will be determined based on the targeted reclaimed land use with some wetlands requiring additional overburden to restore appropriate hydrology. The CRP narrative acknowledges that IMC has developed an Integrated Site Habitat Management Plan that includes plans for the reclamation of uplands, control of nuisance and exotic species in uplands, and management of all listed species. The CRP narrative asserts that IMC will reclaim and manage over 1378 acres of uplands, such as by removing cogongrass and maintaining it to less than 10 percent coverage, except less than 5 percent coverage within 300 feet of wetlands. The CRP narrative mentions that IMC has "volunteered" the Conservation Easement and Easement Management Plan to encumber not less than 525 acres associated with Horse Creek. CRP General Condition 7 states: "[IMC] is encouraged to implement the Integrated Habitat Network (IHN) concept (where possible) when establishing reclaimed upland and wetland forested areas." As overlaid on OFG, the IHN, which is developed by DEP, is depicted in Figure 12-5. The IHN covers almost all of the no-mine area; the floodplains and headwater wetlands of the Stream 1e series, Stream 3e, and Stream 3e?; much of the non-pasture reclaimed uplands; and a large area of reclaimed improved pasture south and west of the reclaimed sand live oak area immediately west of the West Lobe. The backbone of the IHN is the network of rivers and streams, with their floodplains, that provide multifunctional habitat for wildlife. As noted in the introduction to the January submittal, the HMP helps implement the portion of the IHN located at OFG. Although only selectively incorporated into the ERP and CRP approval, the HMP describes IMC's overall plan for reclaiming OFG. The stated goal of the HMP is "to maintain or improve the biological functions of the wetlands and uplands . . . as an integrated component of the mining and reclamation plans." The HMP adds: "By preserving and managing the highest quality habitats on [OFG], these reserves will serve as source populations to recolonize the remainder of the site following completion of reclamation." Overall, the reclamation plan and HMP try to restore a functional interrelationship of uplands, wetlands, and surface water to replace the reduced functions that result from the agricultural alterations to uplands, wetlands, and most of the surface water, leaving large areas of a patchwork fragmentation of habitats. The HMP covers habitat management prior to land clearing, species-specific management techniques immediately prior to land clearing, species-specific management techniques during mining, habitat management in no-mine areas, reclamation goals for habitat, reclaimed habitat management after release, and, in the second part of the HMP, specific actions for each listed wildlife and plant species. Prior to land clearing, IMC will engage in little active habitat management, apart from surveys, as the Carlton- Smith family continues its agricultural uses of the land, which it is entitled to do under its contract with IMC. Immediately prior to land clearing, IMC will relocate each species, after obtaining the necessary permits, either by capture or, for the more mobile species, controlled burns or directional clearing to encourage wildlife migration into an adjoining refuge area. For listed bird species, IMC will protect their nesting areas or restrict land clearing to non-nesting season. During mining, aquatic- and wetland-dependent species will continue to have access to Horse Creek and its riparian wetlands, which are never isolated by the ditch and berm system. The only permitted direct disturbance of the no-mine area is outside Horse Creek's direct floodplain. During mining, the vast water recirculation system will provide incidental, temporary habitat for many aquatic- or wetland-dependent species. The second part of the HMP identifies management techniques for specific listed species of vertebrates. The HMP states that no listed plants exist on OFG. The HMP addresses 15 listed species observed on OFG and nine listed species that could potentially use OFG. The HMP mistakenly lists the Florida panther in the latter category, rather than the former category, but the error is harmless given the limited use of OFG by the Florida panther and the apparent lack of a breeding population north of the Caloosahatchee River. The following paragraphs describe the HMP's treatment of several listed species using OFG. Noting that the American alligator, which is a species of special concern, occupies freshwater habitats throughout Florida, plenty of such habitats exist around the mining areas, and the alligator is mobile, IMC expects that the American alligator will move out of the way of mining activities, so no management measures will be used for alligators. Presumably well-served by former Land-and-Lakes reclamation and an opportunistic inhabitant of deep wetland reclamation, alligator management is of no importance in these cases. The HMP reports two possible observations on OFG of the Florida panther, which is an endangered species. There is no doubt about one of these observations. On the other hand, there is no doubt that OFG is far from prime panther habitat. Thus, IMC will check for panther signs during pre-clearing surveys and anticipates that the unmined floodplains that are part of the IHM will maintain suitable habitat--presumably, for travel. IMC has already mapped the distribution on OFG of the gopher tortoise, which prefers well-drained, sandy soils characteristic of xeric and mesic habitats. IMC has already prepared a management plan for gopher tortoises, which are a species of special concern, and, upon DEP approval, will engage in several measures to reduce mortality due to mining activities, including, upon receipt of an FWC permit, relocating gopher tortoises, as well as other commensal species found in or near the tortoises' burrows, to appropriate locations, including one or more of the above-described ACIs. The Sherman's fox squirrel, which is a species of special concern, prefers sandhill communities and woodland pastures, and many of these squirrels use suitable areas of OFG. They are mobile, and, during mining operations, they will move to the no-mine areas adjacent to Horse Creek. Prior to land clearing, IMC will survey each area, and, if it finds active nests, these areas will be avoided until the young squirrels have left the nests, pursuant to FWC requirements. The Florida Mouse, which is a species of special concern, inhabits sand pine scrub and other xeric communities and is a commensal of the gopher tortoise. Prior to land clearing of suitable Florida Mouse habitat, IMC will conduct live-trapping. If any such mice are captured, IMC will relocate them to a suitable relocation site, such as to ACI-2, ACI-4, or ACI-6 or to xeric or pine flatwoods/dry prairie habitat that will be reclaimed on OFG. IMC will employ similar procedures for the Florida gopher frog, which is another commensal of the gopher tortoise. A species of special concern, the Florida gopher frog will also be the subject, with other amphibians, of research regarding use of reclaimed habitats and funded by IMC with at least $30,000. The Audubon's crested caracara, which is a threatened species, prefers dry prairie with scattered marshes and improved pasture. They typically nest in cabbage palms or live oak trees. Observers have seen a pair of caracaras on OFG, but attempts to locate a nest onsite have been unsuccessful. Prior to clearing cabbage palms, IMC will again survey the area for nests. If IMC finds a nest onsite or within 1500 feet of OFG, it will develop an FWC-approved management plan. The post- reclamation palmetto prairie and pine flatwoods are good caracara habitat. One of the few listed species whose habitat needs have been well-served by agricultural conversions to improved pasture, the burrowing owl occupies numerous areas on OFG. IMC intends to schedule land clearing in areas with active burrows during non-nesting season, but, if this is impossible, IMC will attempt to empty the burrow prior to clearing the land. Additionally, IMC will spend at least $30,000 to fund research to improve the technology to relocate onto reclaimed land burrowing owls, which are a species of special concern. Although IMC found on OFG no nests of sandhill cranes, which are threatened, or little blue herons, which are a species of special concern, sandhill cranes nest in reclaimed wetlands on the Ft. Green Mine, and IMC expects sandhill cranes to nest in the reclaimed wetlands at OFG. Prior to mining, IMC will survey marshes for sandhill crane and little blue heron nests, and, if it finds any, it will disturb those areas in non- nesting season. Wood storks, which are endangered, use OFG for foraging, but IMC found no evidence of wood stork rookeries on or nearby OFG. The nearest known active rookery is 22 miles from OFG. Prior to landclearing during wood stork nesting season, IMC will survey each wetland with the potential to support stork nesting sites. If IMC finds any nests, it will follow the latest guidelines from FWC or U.S. Fish and Wildlife Service for protecting the site. For the white ibis, snowy egret, and tricolored heron, which are species of special concern, IMC will survey those wetlands that are suitable nesting site prior to landclearing. If any active nests are found, IMC will schedule landclearing during non-nesting season. CRP General Condition 8 provides that groundcover in all upland forests shall include one or more of the following native plants: fruit-bearing shrubs, low-growing legumes, native grasses, and sedges. CRP General Condition 9 provides that IMC shall use native grasses and shrubs when reclaiming grasslands and shrub and brushlands. CRP General Condition 10 provides that IMC shall incorporate clumps of trees in reclaimed improved pasture so that each ten acres has "some trees." CRP General Condition 11 states that IMC shall make "every effort" to control nuisance and exotic species within the mine. CRP Specific Condition 1 is ERP Specific Condition CRP Specific Condition 2 is ERP Specific Condition 23. CRP Specific Condition 3 is ERP Specific Condition 11. CRP Specific Condition 4 is for IMC to obtain authorization from the FWC to trap and relocate Florida mice. Specific Condition 4 requires the trapping and relocation of Florida mice prior to clearing areas inhabited by them. CRP Specific Condition 5 requires IMC to make "every effort" to relocate listed plant species to suitable reclamation sites when such species are encountered prior to or during land clearing. CRP Specific Condition 6 is ERP Specific Condition 12.c. CRP Specific Condition 7 is ERP Specific Condition 12.d. CRP Specific Condition 8.a provides: Areas designated as pine flatwoods . . . and palmetto prairie shall be reclaimed by placing a minimum layer of fifteen (15) inches of sand tailings over the overburden and topsoiling with three (3) to six (6) inches of direct transferred or stockpiled native topsoils from pine flatwoods or palmetto prairie areas as that topsoil is available and feasible to move. Feasible means of good quality, relatively free of nuisance/exotics species, and within 1.5 miles of the receiver site. If topsoil is not available or feasible to move, a green manure crop will be seeded and disked in after it has matured before applying a flatwoods or palmetto prairie native ground cover seed mix to this site. In flatwoods, longleaf pine . . . or slash pine . . . shall be planted in the appropriate areas to achieve densities between 25 and 75 trees per acre. In flatwoods and palmetto prairie, shrubs typical of central Florida flatwoods and palmetto prairies will be recruited from the topsoiling, planting, and/or seeding to achieve a minimum average density of 300 shrubs per acre. The total vegetation covered by hydric flatwoods will be greater than 80 percent, in mesic flatwoods and palmetto prairies will be greater than 60 percent, and in scrubby flatwoods, greater than 40 percent. CRP Specific Condition 8.b provides: Areas designated as sand live oak or xeric oak scrub . . . shall be reclaimed by placing several feet of sand tailings over the overburden and topsoiling with three (3) to six (6) inches of direct transferred or stockpiled native topsoil from scrubby flatwoods or scrub areas. Feasible means of good quality, relatively free of nuisance/exotics species, and within 1.5 miles of the receiver site. If topsoil is not available or feasible to move, a green manure crop will be seeded and disked in after it has matured before applying a scrubby flatwoods or scrubby native ground cover seed mix to this site. Trees and shrubs typical of central Florida scrubs will be recruited from the topsoil, planted, and/or seeded to achieve a minimum density of 600 plants per acre. Vegetative cover in these areas will be greater than 40 percent. CRP Specific Condition 8.c provides: Other upland forest areas, including [temperate hardwoods, live oak, and hardwood-conifer mixed], shall be reclaimed, as illustrated by Map I-2, by placing a minimum layer of fifteen (15) inches of sand tailings over the overburden, capping the area with approximately three (3) inches of overburden and disking the surface to reduce compaction of the upper soil layer prior to revegetation. Other uplands shall be revegetated with a native ground cover, planted with trees to achieve a density of 200 plants per acre, and planted with shrubs to achieve a density of 200 shrubs per acre. CRP Specific Condition 8.d provides that IMC shall incorporate native grass species into the groundcover of all reclaimed uplands. CRP Specific Condition 8.e allows IMC to use bahia grass, Bermuda grass, and exotic grass species as groundcover in native habitats only in "limited amounts" needed for "initial stabilization in areas highly prone to erosion." When using these grasses, IMC must maintain them to prevent their proliferation. CRP Specific Condition 9 is ERP Specific Condition CRP Specific Condition 10 is ERP Specific Condition 21. CRP Specific Condition 11 resembles ERP Specific Condition 11, but requires more of IMC. CRP Specific Condition 11 states that IMC "has committed" to initiate the management and evaluation of amphibians, including the Florida gopher frog, and shall adhere to the provisions of the IMC Minewide Gopher Tortoise and Burrow Conceptual Management Plan. IMC shall pay at least $30,000 to conduct a study of amphibian use of reclaimed and unmined wetlands. IMC shall report its progress in the annual narrative reports that it must file, pursuant to Florida Administrative Code Rule 62C-16.0091. CRP Specific Condition 12 contains similar provisions for the burrowing owl. Related to ERP Specific Condition 15.a, CRP Specific Condition 13 requires IMC to make "every effort" to control cogongrass by eradicating it prior to mining, removing it after it colonizes spoil piles during mining, inspecting donor topsoil sites to prevent infestation by it, and regularly treating it on reclaimed sites to maintain coverage below 10 percent, or 5 percent within 300 feet of any reclaimed wetland. WRP The WRP at issue is for the Ft. Green Mine, not OFG. The basic purpose of the WRP is to permit IMC to dispose of the clay tailings extracted from OFG in CSAs O-1 and O-2, which are located at the southern end of the Ft. Green Mine. In an unchallenged action, DEP, on March 20, 2001, approved a requested modification of the CRP approval for the Ft. Green Mine to permit the changes sought in these cases for the Ft. Green Mine WRP. Thus, the WRP modification sought in these cases is merely a conforming modification. Normally, a WRP/ERP would take precedence over a CRP approval because mining may not start without a WRP/ERP, but may start without a CRP approval. In the unusual situation at the Ft. Green Mine, where the mining has been completed, the analysis of the WRP modification is limited to, primarily, the sufficiency of the changes in mitigation to offset the already- completed mining and, secondarily, the relevant impacts of the mitigation itself. DEP issued the WRP on May 1, 1995. This permit allowed IMC to mine 524.6 acres of wetlands at the Ft. Green Mine. On February 3, 1997, DEP issued an ERP to allow IMC to disturb 1.39 acres of surface water for a utility corridor. Following the receipt of a request by IMC for a major modification of the WRP to permit the mining of 7.6 acres of wetlands, DEP consolidated this request, the utility-corridor ERP, and the original WRP into a new WRP issued July 28, 1999. After a modification to the new WRP in 2000 that is irrelevant to the present cases and other irrelevant permitting activity, IMC has requested the modification that is at issue in these cases. Because this WRP modification follows the completion of mining and the near-completion of backfilling of sand tailings into the mine cuts, a denial would not spare the wetlands and other surface waters from the impacts of mining. Rather, a denial would leave the Ft. Green Mine with greater impacts and less mitigation. In simplest terms, a denial would harm the water resources of the District. Strengthening the already-approved mitigation and diminishing the impacts of the already-approved CSAs, this WRP modification will authorize IMC to reduce the size of the two CSAs (O-1 and O-2) in the southern end of the Ft. Green Mine and relocate them farther from Horse Creek; to relocate several reclaimed wetlands in the vicinity of CSAs O-1 and O-2 and expand their area by 2.7 acres with minor changes to some sub- basin boundaries; and to modify the reclamation schedule to conform to a modification already approved without challenge for the Ft. Green Mine CRP. The record demonstrates that the reduction in size and relocation of the CSAs away from Horse Creek will reduce the hydrological and biological impacts from those already permitted. The record demonstrates that the expansion of the area of reclaimed wetlands will add mitigation to offset the hydrological and biological impacts from already-completed mining activities. The record demonstrates that the relocation of the reclaimed wetlands and modification of the reclamation schedule will not affect the impacts or mitigation. Other Mitigation/Reclamation Projects Introduction The formation of wetlands vegetation, according to IMC biologist Dr. Andre Clewell, is a function of topography, hydrology, soils, and physical environment--to which should be added time. The formation of soils, according to Charlotte County soil expert Lewis Carter, is a function of parent material, time, relief, vegetation, and climate. Hydrology is dependent upon, among other things, topography, soils, geology, vegetation, and climate. Successful reclamation must thus account for the complex interdependency of the dynamic processes involving vegetation, soil, and hydrology. Although actual reclamation follows a clear order-- geology, soils, contouring, and planting--the order of the design process is not so clear. Presumably, in designing a reclamation plan, the biologist, soil scientist, and hydrologist would each prefer to have the final--as in last and authoritative--word. In general, the comparison of older mitigation sites to newer mitigation sites requires caution due to two factors, which somewhat counterbalance each other. The vegetation of the older sites has had longer to establish itself. The importance of this factor varies based on the type of vegetation. Groundcover establishes more quickly than shrubs, and shrubs establish more quickly than trees, but groundcover that requires protection from the tree canopy may not be able to colonize an area until the trees are well-established. Soils take a longer time to recover, generally longer than the timeframes involved in phosphate mining reclamation in Florida. The soils present in Hardee County took 5000 to 10,000 years to form. The A horizon, or topsoil layer, at OFG formed over 300-500 years. However, if the soil and hydrology are suitable at a reclaimed site, an A horizon may start to reform in as little as 10 years, but, even under ideal conditions, it will take several hundred years to reform to the extent and condition in existence prior to mining. The mucky soils underlying bay swamps form at the rate of about one inch per 1000 years. Offsetting the advantage of age for vegetation and soils, the older reclamation sites may suffer from less advanced designs and construction techniques. Newer sites benefit from advances in science and technology that have enabled phosphate mining companies to design and implement reclamation projects that more successfully replace the functions of the natural systems and communities lost to mining. Some of these advances have resulted in dramatic, sudden improvements in reclamation. The assessment of past reclamation projects must account, not only for the age of each project, but also the willingness of the phosphate mining company at the time to employ the then-available science and technology. The ratio of the cost of reclamation to projected revenues depends on the variables of specific mitigation expenses, mining expenses, and the value of the phosphate rock. These economic factors operate against the backdrop of a dynamic regulatory environment. In these cases, for example, IMC's willingness to reduce its mining impacts and expand its mitigation was a direct result of the Altman Final Order and DEP's decision to revisit its earlier decision to permit the Ona Mine. Uplands The uplands at OFG are more amenable to successful reclamation than the wetlands or streams at OFG. Uplands provide crucial functions. Certain uplands, such as those that provide seepage to wetlands or prime recharge to deep aquifers, provide hydrological functions as complex as the hydrological functions of many wetlands. Certain uplands provide irreplaceable habitat. Certain uplands vegetation is as vulnerable to climactic or anthropogenic disturbance as any wetlands vegetation. However, for the most part, the functions of uplands are not as complex or important as the functions of wetlands and other surface waters, when examined from the perspective of the water resources of the District, and these functions are more easily reclaimed. Over 77 percent of OFG and over 90 percent of the uplands at OFG are agricultural (2146 acres) or pine flatwoods, palmetto prairie, or sand live oak (1120 acres). (As noted above, palmetto prairie and sand live oak share many attributes of pine flatwoods, which they often succeed.) In terms of function, tolerance to ranges of hydrology and soils, and robustness of post-reclamation vegetation, these 3266 acres of uplands communities will be easier to reclaim than all of the proposed streams and wetlands, except for deep marshes, although pine flatwoods and palmetto prairies present the greatest difficulties in uplands reclamation due to their soil and hydrological requirements, including access to the post- reclamation water table. Impacts to uplands include the disappearance--even temporarily--of critical habitat for listed species, the susceptibility of uplands to post-disturbance nuisance exotics, and, for upland forested communities, the relatively long period required for restoration of the canopy. However, these impacts can be offset in most cases. Management plans can mitigate the temporary or permanent loss of specific upland habitat, depending on the availability of habitat and the robustness and abundance of the species requiring the habitat. Absent the presence of rare uplands habitat and/or rare species requiring the habitat, a greater problem with uplands reclamation is controlling nuisance exotics. Various grass species, including Bahia, Bermuda, torpedo, centipede, Natal, and cogon, impede progress in the development of a healthy uplands community. One of the world's ten worst weeds, cogongrass is limited to uplands, although it may extend into the higher parts of wet prairies and drier areas within forested wetlands. Although nuisance and exotic species may invade undisturbed areas, the removal of existing upland vegetation exacerbates the problem by removing native competitors and stimulating unwanted germination. However, ongoing maintenance, through a combination of herbicides, manual removal, and fire, controls the nuisance exotics long enough that the native vegetation can colonize the disturbed area. Upland forested communities require protection from grazing and mowing to permit their establishment. Canopy development takes years for any upland forested community and, for slower-growing xeric systems, at least a decade. The timely restoration of an appropriate fire regime is also important for the health of many upland communities. Not surprisingly, the record demonstrates the successful reclamation of uplands at several mitigation sites. In recent years, reclamation scientists have restored uplands structure of uplands by restoring the understory and midstory. Uplands restoration has improved with the introduction of new, more effective reclamation techniques, such as topsoiling and seeding. Until 1987, for instance, restoration biologists did not know that wiregrass--a key component of the understory of pine flatwoods--produced seeds. This knowledge has assisted in the reclamation of a proper understory of pine flatwoods. The favorable prognosis of uplands reclamation means that extensive areas of OFG uplands may be mined. Their functions will be substantially replaced, in a reasonable period of time, upon the establishment of the reclaimed upland community, although the destruction of xeric communities means their absence for relatively long periods of time and the destruction of uplands providing seepage support to wetlands requires the close-tolerance hydrology and soils associated with the most difficult wetlands reclamation. Approved in 1989 and amended in 1994, constructed by 1986, and released in 1994, Best of the West (NP-SWB(1D)) was targeted for 15-18 acres of xeric habitat. Best of the West was constructed on sand tailings overlaying overburden, although this site exhibits some stunted vegetative growth where the sand tailings may not be very thick and the roots of trees may have encountered the hardened overburden. FWC assisted the phosphate mining company in designing the reclamation plan for this site, which has resulted in the successful reclamation of 10 acres of xeric habitat. The CDA provides some background on Best of the West. The West Noralyn Xeric Scrub Reclamation (N-5), which was constructed by 1986, contained "mulched overburden plots" and 60 acres of unmined scrub. Containing a total of 462 acres of reclaimed and unmined land, Noralyn was the first attempt to create a large-scale xeric community. About 120 acres of Noralyn received 12 inches of donor topsoil from a comparable xeric community. Due to a lack of representation in the donor site, supplemental plantings of longleaf pine, sand pine, and rosemary followed. The overall project has been "moderately successful," but the 18 acres that yielded "exceptional results" were dubbed "Best of the West." Best of the West thus illustrates a recurrent feature of much reclamation activity, in which successful projects are actually small parts of the original project area, the rest of which is substantially less successful. The CDA states that, in January 2000, IMC initiated a land management program for Noralyn that includes herbicide applications and prescribed burns. After herbicide was applied to kill cogongrass, IMC conducted the first burn in March 2001. Noralyn is now being managed for four to five families of Florida scrub jays, a listed species. Four Eastern Indigo snakes, 225 gopher tortoises, numerous gopher frogs, and 119 Florida mice have been relocated to Noralyn. Approved in 1988, constructed in 1991, and released in 1992, Hardee Lakes topsoil (FG-PC(1A)) has a 7.9-acre uplands component that was topsoiled with one inch over overburden. Despite receiving no maintenance, the site displays few weeds or nuisance exotics, although cogongrass has invaded the site. The reclaimed site displays saw palmetto, gallberry clumps, creeping bluestem grass, and, in topsoiled areas, flowering milkwood. The site includes an ecotone between pine flatwoods and a wet prairie, which developed due to the appropriate slope and soil. The CDA identifies two one-acre demonstration projects with Hardee Lakes topsoil. The Ft. Green-Hardee Lakes Pine Flatwoods Project, a topsoiled site, has achieved a lower ratio of saw palmetto to pines than is presently typically of fire-suppressed communities and is more typical of historic Florida pine flatwoods. The Ft. Green-Hardee Lakes Palmetto Prairie Site, also topsoiled, has been successfully revegetated with saw palmettos and other appropriate species. An interesting uplands reclamation site, for its different use of soils, is the Bald Mountain complex (KC-LB(2) and LB(4)), which is a 180-acre site. In a reclamation project approved in 1989 and 1996, constructed in 1993, and released in 1994 and 2002, IMC backfilled the Bald Mountain site with sand tailings down to 40 feet, capped the sand tailings with six inches of overburden, and then mixed the soils. Nearby, Little Bald Mountain received only sand tailings. Scrub were planted on both locations, but Bald Mountain also received sandhill plantings. Bald Mountain contains suitable sandhill species, such as sandhill buckwheat, although natal grass has been a problem. Natal grass is an invasive grass that colonizes quickly and often requires manual removal. Little Bald Mountain contains appropriate understory grasses, including short-leaved rosemary, an endangered species; Gopher apple, an important wildlife food; and Ashe's [savory] mint, a listed species. The rosemary and mint are reseeding themselves. The site also contains several large palmettos that were started from seed. Approved in 1996, constructed in 2000, and not yet released, Ft. Green/Horse Creek Xeric (FG-HC(3 & 5)) is a 99-acre uplands site reclaimed as xeric oak. IMC backfilled at least six feet of sand tailings over the overburden and then added topsoil over the sand. Already, this site, which is in the nearby Ft. Green Mine, has developed all levels of structure in the appropriate ecosystem, although, according to the CDA, it received irrigation "frequently" from an irrigation system at the start of the project. The site includes denser vegetation, such as shrub palmetto, grasses, and forbs. The direct transfer of topsoil has added species diversity, such as a Florida spruce and a listed orchid. The site also contains a small number of longleaf pines. IMC has hand-removed natal grass at this site, but has lately been using a new selective herbicide. According to the CDA, though, the presence of invasive exotics throughout the site is limited to 0.4 percent. One of the best upland reclamation sites is MU 15E Topsoil (FCL-LMR(6)), which was approved and constructed in 2002 and has not been released. This is a 30-acre topsoiled site in which IMC transferred topsoil carefully: if topsoil was taken from a depression on the donor site, the topsoil was placed in a depression in the receiving site. This site already displays a rich diverse plant palette with hardly any weedy or exotic species. In this site, palmetto and wet prairies slope down to a flatwoods marsh. This site also contains a reclaimed ephemeral wet prairie--possibly the only known ephemeral wet prairie ever reclaimed after phosphate mining. With modest efforts regarding soils and possibly more strenuous efforts regarding nuisance exotics, the reclamation of uplands is relatively easily attained, provided the sites can be protected for the longer timeframes necessary to establish upland forests and especially upland xeric communities and an appropriately shallow water table is reclaimed for pine flatwoods and palmetto prairies. Wetlands Wetlands reclamation is generally more difficult than uplands reclamation. Successful wetlands reclamation typically requires better command of post-reclamation topography, hydrology, soils, and physical environment. Material deviations in these parameters reduce, or eliminate, many wetlands functions, such as floodplain communication, nutrient sequestration, floodwater attenuation, ecotone transitions, and habitat diversification. The loss of such functions may result in immediate problems with water quality, water quantity, and habitat. Given the greater difficulty in successful wetlands reclamation, experience in wetlands reclamation is, not surprisingly, more mixed than the generally favorable experience in uplands reclamation. The greater difficulty in, and more guarded prognosis of, wetlands reclamation, as compared to uplands reclamation, means that the disturbance of wetlands demands closer analysis of the functions of the wetlands proposed to be mined, the functions of the wetlands proposed to be reclaimed, and the reclaimed soils, hydrology, topography, and physical environment on which the reclamation scientists will rely in reclaiming wetlands functions. The most important factor in wetlands reclamation is hydrology. Wetlands with less rigorous hydrological needs, especially if they also tolerate deeper water over longer periods of time, reclaim much more easily than wetlands with more precise hydrological needs, especially if they require shallower water over shorter periods of time. The phosphate mining industry has repeatedly reclaimed marshes and cypress swamps that are inundated deeply and for extended periods of time, but has had a much harder time reclaiming shallower wetlands requiring shorter hydroperiods or shallower water levels. The two most difficult wetlands of this type to reclaim are bay swamps and wet prairies. Among herbaceous wetlands, deep marshes are the easiest to reclaim. Often a target of Land-and-Lakes reclamation, deep marshes also are the result of reclamation projects that failed to create targeted shallower wetlands. Charlotte County ecologist Kevin Irwin noted that deep marshes are easier to reclaim than forested wetlands, for which the post-reclamation hydrology must be more precise. Similarly, a freshwater marsh, which tolerates 6-30 inches of water from 7-12 months annually, is easier to reclaim that a wet prairie, which tolerates 0-6 inches of water from 2-8 months annually. Among forested wetlands, bayheads or bay swamps, as defined in these cases as seepage forested wetlands, are harder to reclaim than mixed wetland hardwoods, as IMC biologist Dr. Douglas Durbin testified--likely, again, due to the requirement of more precise post-reclamation hydrology. Accordingly, the parties do not dispute the ability of the phosphate mining industry to reclaim deep marsh habitat, including freshwater marshes and shrub marshes, as well as deep swamps--principally cypress swamps. Like wet prairies, which sometimes fringe deep marshes, deep marshes provide habitat, supply food, attenuate floodwaters, and improve water quality. Deep marshes may host large numbers of different plant species. However, like lakes, deep marshes remove larger amounts of water from the watershed, as compared to shallower wetlands with shorter hydroperiods, due to evapotranspiration. The reclamation projects known as Morrow Swamp, Ag East, 8.4-acre Wetland, and 84(5) trace a short history of the reclamation of deep-marsh habitat. Permitted in 1980, constructed in 1982, and released in 1984, 150-acre Morrow Swamp represents a prototype, second- generation wetlands reclamation project. According to the CDA, Morrow Swamp is from an era in which reclamation did not attempt to restore topography: "This ecosystem included the reclamation of 150 acres of wetland (freshwater marsh, hardwood swamp, and open water) and 216 acres of contiguous uplands. The reclamation site was originally pine flatwoods and rangeland before it was mined in 1978 and 1979." Designed and built before reclamation scientists concentrated on soils, the hydrological connection between Morrow Swamp and Payne Creek, into which Morrow Swamp releases water, is a concrete structure in a berm that leads to a swale that empties into Payne Creek. Morrow Swamp reveals one obvious shortcoming of mechanical outflow devices, at least if they depend on ongoing maintenance, because vegetation and sedimentation in the infrequently maintained outflow device have blocked the flow of water and contributed to water levels deeper than designed. The reclamation scientists pushed the row-plantings of trees in Morrow Swamp in an effort to understand the relationship of vegetation and hydroperiod. In doing so, they killed thousands of trees, such as the cypress trees that Authority ecologist, Brian Winchester, found that grew to 6-8 inches in diameter and suddenly died. This tree mortality was likely due to problems with water depths and hydroperiods, as suggested by the healthier cypress trees lining the shallower fringe of the marsh. Morrow Swamp operates as a basin with a perched water table atop compacted, relatively impermeable overburden. Beneath the dry overburden is moist soil, so there is no groundwater connection between the marsh and the surficial aquifer. According to Mr. Carter, sand is 15 times more permeable than overburden. Morrow Swamp presents numerous shortcomings, but not to alligators, who find ample food and habitat in and about the deep marsh. More importantly, the emergent-zone vegetation within Morrow Swamp is sequestering nutrients and thus providing water-quality functions. Unfortunately, the deeper water supports only floating vegetation, which is much less efficient at sequestering nutrients, and less diverse than the shallower emergent vegetation, so the excessive depths of Morrow Swamp limit its water-quality functions. Although short of a model wetlands reclamation project, Morrow Swamp was an important milestone in the development of wetlands reclamation techniques and clearly functions as a deep shrub marsh today. Permitted in 1985, constructed in 1986, and released in 2002, 214-acre Ag East (PC-SP(1C)) was built on the knowledge acquired from Morrow Swamp. At Ag East, which is just northeast of Morrow Swamp, the reclamation scientists, planting a large variety of trees, focused on water levels and hydroperiods. The reclamation scientists engineered a wetland system with less open water than Morrow Swamp. They also inoculated the surface with a layer of organic mulch material 2-4 inches thick. However, the design of Ag East again incorporated mechanical devices to control water levels. A weir at one corner of Ag East contains boards; by removing or adding boards, reclamation scientists could control the water depths behind the weir. The deep marsh within Ag East is excessively deep with an excessively long hydroperiod. In certain respects, Ag East has functioned better than Morrow Swamp, although there is some question as to vegetative mix establishing the site and the associated functions that the vegetation will provide. Again, though, Ag East features a functioning deep marsh. One clear shortcoming of Ag East was the failure to create appropriate upland habitat, such as pine flatwoods, around the wetlands, so that wetland species could find appropriate uplands habitat for breeding, nesting, or feeding. The CDA notes the availability of quarterly water quality monitoring data, over a five-year period, for pH, dissolved oxygen, conductance, and total phosphorus, among other parameters, but the results are not contained in this record. Permitted in 1983, constructed by 1986, and released in 1995, 8.4-Acre Wetland (FG-83(1)), which was targeted for 8.4 acres of wetland forested mixed, represents an early use of topsoil, which was a good seed source for herbaceous species and helped increase the effective depth of overburden. As noted above, shallower overburden discourages tree growth past a certain stage. However, 8.4-Acre Wetland also uses a water- control weir to control water depths on the reclaimed wetland. Despite its smaller size than Morrow Swamp or Ag East, 8.4-Acre Wetland was a more ambitious project hydrologically, as it attempted to replace a seepage wetland with a seepage wetland that would receive water from the surrounding uplands. Unlike Morrow Swamp and Ag East, 8.4-Acre Wetland was designed to reclaim only forested wetlands, not forested wetlands and marsh wetlands. Unfortunately, 8.4-Acre Wetland did not re-create a seepage wetland due to excessively deep water and excessively long hydroperiods. Emphasizing instead the creation of microtopography, the reclamation scientists added sand-tailings hummocks within the deeper marsh, effectively lowering the water table under the mound, and planted wetland herbaceous and forested species that could not tolerate the wetter conditions around the hummock. The evidence is conflicting as to the success of these hummock plantings, but the idea was sound. Parts of 8.4-Acre Wetland are at least half infested with cattails, and sizeable areas within 8.4-Acre Wetland are reclaimed marsh, not swamp--despite the attempt of the reclamation scientists to reclaim forested wetlands only. Permitted in 1985, constructed by 1987, and released in 1998, 84(5) (FG-84(5)) was targeted for 17.1 acres of wetland forested mixed and 2.3 acres of freshwater marsh. This site is notable for its soil characteristics. After two soil borings, Mr. Carter could not find a water table in the first 80 inches beneath the surface. However, he found an A horizon, but the CDA notes that this site received 18 inches of donor topsoil. Even more recent reclamation projects have tended to yield deep marshes. Permitted in 1997, constructed in 2002, and not yet released, 198-acre P-20 (FG-HC(9)) exists behind the berm that remains from the ditch and berm system that existed during mining. The sole outlet of the marsh is a discharge pipe, which, presently clogged with vegetation, appears to be contributing to excessively high water depths and excessively long hydroperiods, resulting in an abrupt transition from marsh to uplands without the zonal wetlands associated with natural transitions from marsh to uplands. Water in the marsh spreads into the surrounding uplands, which are planted with upland trees. The berm also prevents natural communication between the marsh and the floodplain of Horse Creek, which is a short distance to the west of P-20. In the reclamation projects described above, more often than not, the reclamation scientists reclaimed deep marshes while targeting shallower wetland systems or at least shallower marshes or swamps. By the mid-1980s, wetlands reclamation scientists were addressing more closely hydrology, vegetation, topsoil, and surrounding upland design, and DEP was imposing post-reclamation monitoring requirements on the phosphate mining companies. One common feature of most of these deep-marsh reclamations is their reliance upon artificial drainage outlets. Inadequate or nonexistent maintenance of these outlets causes excessive water depths for excessive periods. Additionally, reliance on artificial drainage outlets betrays the choice not to attempt more sophisticated design and more precise contouring of the post-reclamation landscape. Improvements in the design and execution of contouring could produce relief from the deep- marsh tendencies of reclamation practices in at least three ways: by flattening the slopes of the edges of the marshes to encourage the formation of more emergent vegetation and wet prairie fringes; introducing a more irregular microtopography in the submerged bottom, including hummocks, to develop greater habitat diversity; and engineering and grading more closely the topographical outlets of marshes, instead of relying on manmade drainage devices that required more maintenance than they received, to better reproduce pre-mining drainage features and access effectively the reclaimed water table. After 8.4-Acre Wetland, reclamation scientists produced, in addition to the P-20s, other marshes with better fringes, so as to support wet prairie fringes, but the most, and evidently only, successful example of shallow-wetland reclamation over an extensive area is PC-SP(2D) (SP-2D). Permitted in 1988, constructed in 1992, and released in 1998 (wetlands), SP(2D) comprises 97 acres of forested and herbaceous wetlands. According to Mr. Winchester, SP-2D exhibits a more natural hydroperiod than the other reclaimed wetlands that he studied. Mr. Winchester visited SP-2D during the dry season, and the shallow wetland was appropriately dry, even though other reclaimed wetlands at the time were inappropriately wet. Mr. Winchester also found less than ten percent coverage by exotic vegetation. Wet prairie fringes deeper marsh at SP-2D, rather than forming larger areas of isolated or connected wet prairie, but this wetland achieves extensive shallow-water areas. According to Authority ecologist Charles Courtney, the marsh of SP-2D appears fairly healthy and contains appropriate vegetation. SP-2D contains sawgrass and forbs, including maidencane and duck potato. Crayfish occupy the wet prairie fringe and are eaten by white ibis and otter. The marsh zonation found at SP-2D is partly a result of appropriate soil reclamation. Mr. Carter found good communication between the shallow marsh at SP(2D) and the surficial aquifer. In the wet season, Mr. Carter found the water table at eight inches above grade, demonstrating that the dry conditions found by Mr. Winchester during the dry season did not extend inappropriately into the wet season. Mr. Carter determined that the first four inches of the wetland is mulched topsoil overlying at least four feet of sand tailings. The subsurface soils were appropriately saturated. Permitted in 2002, constructed in 2003, and not yet released, 1.3-acre FCL-NRM(1) (Regional Tract O, ACOE #362) also contains wet prairie vegetation, but the value of this site, for present purposes, is limited by two factors: its age and its use of a technique not proposed for OFG. Regional Tract O, ACOE #362, is a new site that showcases the success--one year after planting--of the technique of cutting wet prairie sod at a donor site and laying it at the recipient site. Sod-cutting is a good technique, earlier used at Morrow Swamp, but is more expensive than the topsoil transfer proposed for OFG. The reclamation of forested wetlands has improved in recent years. To some extent, the history of forested-wetlands reclamation tracks the path of herbaceous-wetlands reclamation: deeper water for longer periods followed by instances of shallower water for shorter periods. Early in the forested-wetlands reclamation process, reclamation scientists and phosphate mining companies favored cypress trees due to their tolerance of a wider range of water depths and hydroperiods than other wetland trees. However, cypress trees do not occur naturally in the forested wetlands being mined in this part of Florida. Over time, reclamation scientists deemphasized the number of species of wetland trees and emphasized instead species that corresponded to those in comparable forested wetlands. Herbaceous and forested wetlands present different reclamation challenges due to the time each type of wetland requires for revegetation. An herbaceous wetland takes 1-2 years to revegetate, but a forested wetland may take 1-2 decades to gain "really good structure," as Dr. Clewell testified. In addition to taking longer to establish than herbaceous wetlands, forested wetlands require two stages of plantings because the groundcover cannot be added until 4-5 years after planting the trees, so that the trees provide sufficient cover for the appropriate groundcover to grow. The hydrological requirements of different forested wetlands vary. IMC will be reclaiming mostly mixed wetland hardwoods (44 acres), bay swamps and wetland forested mix (each 18 acres), and hydric pine flatwoods (15 acres). All of these communities require water depths equal to those required by wet prairies. Hydric pine flatwoods have a very short hydroperiod-- shorter even than the wet prairie. Bay swamps have a long hydroperiod, comparable to that of the freshwater marsh. And mixed wetland hardwoods and wetland forested mix have hydroperiods roughly equal to that of the wet prairie. The dryness required by mixed wetland hardwoods, wetland forested mix, and especially hydric pine flatwoods make them difficult to reclaim. At first glance, the longer hydroperiod of the bay swamp would seem to make it easier to reclaim, among forested wetlands, but two factors make the bay swamp the most difficult of forested wetlands to reclaim. First, as defined in these cases, the bay swamp provides a critical seepage function, which is hard to create because of its reliance on a precise reclamation of topography, hydrology, and soils, at least with respect to the soil-drainage characteristics. Second, the mucky soils of the bay swamps are difficult to reclaim, given their slow rate of formation, as noted above. Thus, even without the requirement of the dominance of bay trees within the bay swamp, as defined in these cases, bay swamps are very difficult to reclaim, as reclamation experience bears out. An early reclaimed forested wetland is 4.9-acre Bay Swamp (BF-1), which was created on land that had been cleared, but at least large portions of it were never mined, so, except possibly for a disturbed A horizon, the pre-mining soils and site hydrology were intact. Permitted under a predecessor program in 1979, constructed by 1980, and released in 1982, Bay Swamp earned restrained praise from the Authority as, with Dogleg Branch, one of the two highest-functioning reclamation sites. This praise is quickly conditioned with the warning that Bay Swamp did not reclaim as a bay swamp, but as another type of forested wetland, albeit a relatively high functioning one. For all these reasons, Bay Swamp is of limited relevance in evaluating the success of forested wetlands reclamation projects. However, in commenting upon Bay Swamp, the CDA offers some insight into the evolution of reclamation design standards and objectives and the optimism of reclamation scientists when it notes the difficulty of establishing loblolly bay-dominated swamps, "apparent[ly because they require] perennially moist, or wet, soil that is not inundated. Heretofore, these moisture conditions have not been specified as an objective in reclamation design. If these moisture conditions were targeted for reclamation, loblolly bay swamp creation would likely become routine." Another candidate for a reclaimed bay swamp is Lake Branch Crossing (BF-ASP(2A)). Permitted in 1993 and modified in 1997, constructed in 1996, and not yet released, 13.4-acre Lake Branch Crossing contains numerous sweet bays, loblolly bays, and black gums. However, this site was replanted with 4000 trees in mid-2002, and over one-quarter of these trees are displaying signs of stress, so they may not survive. Lake Branch Crossing is bound by a berm with culverts, which may not share a common elevation. Lake Branch Crossing is another excessively deep wetland with an excessively long hydroperiod. Although Lake Branch Crossing exhibits some seepage, it derives its water from a nearby CSA with a much-higher elevation and thus does not compare to the seepage systems to be reclaimed at OFG. The final candidate for a reclaimed bay swamp is Hardee Lakes (FG-PC(1A)), which is a 76-acre wetland forested mixed at the top of the Payne Creek floodplain. Permitted in 1989 and modified in 1994, constructed by 1991, and released in 2000, Hardee Lakes (which is not Hardee Lakes topsoil--the uplands site described above) contains a narrow seepage slope between the berm along the edge of a reclaimed lake and the natural Payne Creek floodplain. Although Hardee Lakes contains some bay trees and operates as a seepage wetland, the setting is inapt for present purposes, given the narrow slope descending from the nearby reclaimed lake, which provides the water for the seepage system. Like Lake Branch Crossing, Hardee Lakes presents an unrealistically easy exercise in the reclamation of a seepage slope and is therefore irrelevant to these cases. At OFG, broader seepage slopes will receive much of their water from upgradient groundwater that is not derived from a lake or other surface water, so the reclamation scientists must reclaim more accurately the topography, hydrology, and soils, again, at least with respect to soil-drainage characteristics. Reclamation scientists monitored Hardee Lakes following reclamation. Besides the seepage slope described in the preceding paragraph, Hardee Lakes contains shallower wetlands, including productive wet prairie and mixed wetland hardwoods that are growing without the need of hummocks, but these areas appear to be more isolated than extensive. As IMC restoration ecologist John Kiefer noted, shallow swamps are better than deep swamps. Again, the tendency toward deeper reclaimed systems, even recently, has plagued reclaimed forested wetlands, such as Lake Branch Crossing, as it has plagued reclaimed herbaceous wetlands. Permitted in 1992 and modified in 1998, constructed in 2002, and not yet released, North Bradley (KC-HP(3) and PD-HP(1B)) was reclaimed for 12 acres of wetland hardwood forest, 21 acres of wetland conifer forest, and 87 acres of herbaceous marsh. North Bradley suffers from poor communication with its water table, as evidenced by Mr. Carter's discovery of a perched water table under the marshes and an excessively deep water table, at 48 inches, under the forested wetlands, as compared to a water table at 40 inches under the uplands. Although the marsh is present, the forested wetland is largely absent. The SP(2D) of forested reclamation projects is Dogleg Branch (L-SP(12A)). The 19.8-acre wetland component of Dogleg was targeted exclusively for wetland hardwood forest. Another 83 acres of Dogleg was reclaimed as upland hardwood forests. Permitted in 1983, constructed by 1984, and released in 1991 (uplands) and 1996 (wetlands), Dogleg's hydrology is better, as one reclaimed area reveals seepage from a mesic area sheetflowing into the stream channel, which was also reclaimed and is discussed in the following section. Due to its proximity to the reclaimed wetlands, this mesic area was probably part of the reclaimed uplands. According to the CDA, Dogleg received transfers of its own mulch and received several phases of tree plantings over several years. The CDA notes that Dogleg was the first forested wetland mitigation project under Florida's dredge and fill rules. Trees were established in part by the transplanting of rooted tree stumps. Forest herbs and shrubs and mature cabbage palms were transplanted from nearby donor sites. Despite these and other efforts, according to the CDA, "design flaws attributable to a lack of prior restoration experience required costly mid-course corrections." Due to high tree mortality, trees had to be replanted over 11 years. The CDA concludes that the problem was a depressed water table due to nearby ongoing mining operations--if Dogleg had a ditch and berm system, it certainly did not have recharge wells. Following mining, according to the July 1995 semi-annual report, over 30 acres of mine pits immediately east and north of the unmined headwaters of Dogleg were filled with sand tailings, which then released "[c]onsiderable in-bank storage of ground water from this sand[, which] has seeped ever since through Dogleg Preserve and into the replacement stream." Prior to the cessation of mining, though, Dogleg suffered dehydration. According to the CDA, due to the drawdown, the topsoil dried out, and the overburden, on which the topsoil had been placed, hardened in the dry season, retarding root extension. The actual soil conditions are described in greatest detail in the July 1995 semi-annual report, which states that 12 inches of topsoil overlaid the "overburden fill," which was "clayey sand." Repeated and persistent replanting of trees, seedlings, and saplings eventually succeeded in establishing an appropriate wetland forest, which, given the prevalence of hardwoods, would constitute the successful reclamation of a mixed wetland hardwoods community, given the negligible representation of cypress trees and other conifers at the site. As reclaimed, Dogleg hosts 24 different species of wetland trees, including all that occur on OFG. Dogleg's forested wetlands are functioning well, although the reclaimed uplands have a major cogongrass infestation. Permitted in 1985, constructed by 1987, and released in 1998, 19.4-acre FG-84(5) (84(5)) was targeted almost entirely for wetland forested mixed, and small areas within 84(5) have achieved this objective. However, reclamation scientists planted so many cypress trees that their dominance today precludes the application of the wetland forested mixed label to the overall wetland. Nonetheless, 84(5) is a relatively high- functioning forested wetland community today. Engineered to contain hummocks, 84(5) also featured the use of transferred topsoil overlying cast overburden to a depth of at least six feet. Despite the presence of the topsoil layer, the proximity of the cast overburden to the surface, without an intervening sand layer, may have discouraged the formation of an appropriate water table. Although drawing on a lake, 84(5) displayed, in one soil boring during the middle of the wet season, no water table--not even a perched one--through the first 80 inches below grade. A small strip of saturated soil existed at the surface, but the highly compacted and impermeable overburden prevented communication between the wetland and the surficial aquifer. The slopes of 84(5) are also excessively steep. Substantial efforts are required to reclaim the shallow herbaceous wetlands and forested wetlands to be reclaimed at OFG. Deeper marshes and swamps require less effort to reclaim, although they develop more often than targeted when the reclamation scientists overshoot the mark as to hydrology. For shallow wetland systems, which are more important to reclaim, the failures far outnumber the successes, even today, so considerable caution is required in mining high-functioning shallow wetland systems and considerable effort is required in their reclamation. No bay swamps have been reclaimed, except under atypical conditions. Streams The successful reclamation of streams has also proven elusive to reclamation scientists and the phosphate mining industry. Although only one reclamation of a high-functioning, extensive shallow herbaceous wetland exists, fringe and small- scale shallow wetlands have been reclaimed. The difference between the reclamation of shallow herbaceous wetlands and streams is that reclamation scientists have benefited from 25 years of trial and error in engineering shallow wetlands. No similar history exists in the engineering of streams. Only nine stream-reclamation sites are identified in these cases, and, as DEP contends, only one of these sites is successful: Dogleg Branch. And even Dogleg Branch fails to access its floodplain properly and probably never will. The biggest difference between shallow wetlands reclamation and stream reclamation is that, until OFG, the phosphate mining industry has not intensively designed stream-reclamation projects, so IMC and its reclamation scientists have little experience on which to draw. A wetlands-reclamation practice, as found in a Florida Institute of Phosphate Research study described by Mr. Irwin, has been to reclaim wetlands downslope from their pre-mining location. Concentrating reclaimed wetlands downslope facilitates the re-creation of supporting hydrology. For OFG, IMC proposes to relocate wetlands downslope--probably to good effect, given the reversion of OFG to cattle ranching, post- reclamation. However, an adverse aspect of this practice has been the mining of upslope, lower-order tributaries and their replacement with downslope deeper marshes. Although difficult to quantify, this and similar reclamation practices have resulted in the destruction, by phosphate mining, of many lower- order streams and their permanent loss to the watershed and ecosystem. When attempting to reclaim streams, rather than convert them to downslope marshes, the phosphate mining industry and reclamation scientists have enjoyed little success. Two reasons likely explain this poor record: the complexity of the functions of a lower-order stream system, including its riparian wetlands and floodplain, and an excessive reliance on the ability of streams, post-reclamation, to self-organize. The importance inherent in the stream, its riparian wetlands, and its floodplain, as a functional unit, is reflected in the decision of IMC to extend the no-mine area to Horse Creek and its 100-year floodplain. Dr. Durbin accurately observes that IMC and its 100-year floodplain are, respectively, the first and second most important natural resources present at OFG. Horse Creek's tributaries and their floodplains are important for many of the same reasons. Relying upon reclaimed systems to self-organize is an essential element of effective reclamation. Natural and anthropogenic forces shape all of the natural systems present at OFG, and these forces will shape the reclaimed systems. Good reclamation engineering accounts for the dynamic nature of these reclaimed systems by establishing initial conditions, such as natural outfalls instead of weirs and culverts, that can evolve productively in response to the forces to which they are subject and eventually become high functioning, self-sustaining ecosystems. On the continuum between intensively engineered reclamation projects and reclamation projects that rely on self- organization, stream-reclamation projects in the phosphate mining industry have so heavily emphasized the latter approach over the former that they may be said to have reclaimed streams incidentally. That is, reclamation scientists have reclaimed streams by contouring valleys so that the erosive process of flowing water would form a stream channel over time: often, a long time. At DEP's urging after the issuance of the Altman Final Order, IMC has introduced a much more intensively engineered stream-reclamation effort in its Stream Restoration Plan. The main problem in assessing the likelihood of the success of the highly engineered Stream Restoration Plan is its novelty. On the one hand, the incidental reclamation of streams typically has been so slow in restoring functions that a more intensively engineered plan could generate quick gains, at least in the replacement of the functions of low-functioning stream systems, such as those that have been substantially altered by agricultural uses. On the other hand, the Stream Restoration Plan has little success--and no engineered success--on which to build, and misdesigned elements could take longer to correct than the undesigned elements in an incidentally reclaimed stream. Thus, when the uncertainties of successful stream reclamation are combined with the complex functions of lower-order tributaries, their riparian wetlands, and their floodplains, the higher- functioning streams at OFG are less attractive candidates for mining and reclamation than even the shallow wetlands discussed above. Horse Creek's tributaries are not necessarily low- functioning due to their status as intermittently flowing, lower-order streams. Even intermittently flowing, lower-order streams, such as all of the tributaries of Horse Creek, restrict the erosion of sediment into higher-order streams, uptake nutrients, maintain appropriate pH levels, and provide useful habitat for macrobenthic communities, macroinvertebrates, amphibians, and small fish. Intermittently flowing lower-order streams attenuate floodwaters by diverting floodwaters into the streams' floodplains, thus reducing peak flows, extending the duration that floodwater is detained upstream, and increasing groundwater recharge and, thus, streamflow. Intermittently flowing lower-order streams also supply energy for higher-order streams and the organisms associated with these stream systems, as organic material from vegetation, algae, and fungi in the lower-order streams eventually is flushed downstream to serve as food sources to downstream organisms. The functions of streams, including intermittently flowing lower-order streams, become even more complex and difficult to replace when considered in relation to the functions of the riparian forested wetlands associated with many lower-order streams, such as the Stream 1e series. The riparian forested wetlands provide additional attenuation of floodwaters, as the trees impede the flow of floodwater more than would ground-hugging herbaceous vegetation. Mature trees lining the stream provide a canopy that can cool the waters in the warmer months (thus reducing water loss to evaporation), provide downstream food in the form of leaf litter in the seasonal loss of leaves, shield interior water and habitats from the effects of wind, provide habitat for feeding and hiding for wildlife, and protect the channel from the impact of cattle (thus reducing the damage from the production of waste and turbidity and destruction of the channel and vegetation). The riparian forested wetlands are important in the sequestration of nutrients. If accompanied by flow-through wetland systems, such as those present in the Stream 1e series, riparian forested wetlands display a complex interrelationship between the roots and soils that contributes to improved water quality, among other things. The riparian forested wetlands also provide microhabitats whose detail and design would defy the restoration efforts of even the most dedicated of stream- restoration specialists, of whom IMC's stream-restoration scientist, John Kiefer, is one. For some of the stream-restoration projects, DEP explicitly permitted or approved the reclamation of a stream. For other such projects, DEP, at best, implicitly permitted or approved the reclamation of a stream. Four of the projects are tributaries to the South Prong Alafia River and are in close proximity to each other. From upstream to downstream, they are Dogleg Branch, whose forested wetland component has been discussed above; Lizard Branch (IMC-L-SP(10)); Jamerson Junior (IMC-L-CFB(1)); and Hall's Branch (BP-L-SPA(1)). Hall's Branch is about 4-5 miles upstream from the confluence of the South Prong Alafia River and North Prong Alafia River. All four of these reclaimed streams are now part of the Alafia River State Park. As noted above, Dogleg, a 19.8-acre wetland hardwood forest and 83-acre upland hardwood forest, was constructed in 1984 and is the oldest of these four reclamation sites adjoining the South Prong Alafia River. Next oldest is Hall's Branch, which was permitted as a 3.8-acre wetland hardwood forest in 1982, constructed by 1985, and released in 1996. Next oldest is Jamerson Junior, which was permitted as a 4.3-acre wetland forested mixed in 1984, constructed in 1986, and released in 1996. Ten years younger than the others is Lizard Branch, which was permitted in 1983 and modified in 1991, constructed in 1994, and released in 1996; some question exists as to its target community, but it was probably a swamp. The reclaimed stream at Dogleg Branch is part of a second-order stream, although the CDA reports that Dogleg Branch was a first-order stream. Pre-mining, Dogleg Branch and Lizard Branch joined prior to emptying into South Prong Alafia River. Portions of the record suggest that the reclaimed stream lies between unmined stream segments upstream and downstream, although one exhibit, cited below, implies that the mining captured the point at which the stream started. The CDA and the July 1995 semi-annual report state that the headwaters of Dogleg were unmined or preserved. The CDA adds, with more detail than the other sources, that the headwater and first 600 feet of the stream were unmined, and the next 1000 feet, down to the forested riparian corridor of South Prong Alafia River, was mined. Due to its detail, the CDA version is credited, as is the July 1995 semi-annual report: the headwaters of Dogleg Branch are unmined. The July 1995 semi-annual report states that the stream-reclamation component of Dogleg Branch required persistence, as did its forested wetlands component. In 1987, one year after the filling of the mine cuts with sand tailings, as described above, it was necessary to cut a new channel, because the gradient of the old reclaimed channel was too shallow and forced water to back up in the unmined headwaters. Reflective of the age of the reclaimed stream, the understory vegetative species associated with Dogleg Branch are more successional, having replaced the lower-functioning pioneer vegetative species that first predominated after reclamation. As a stream-reclamation project, Dogleg Branch has achieved close to the same success that it has achieved as a reclaimed wetlands forest or that SP(2D) has achieved as an extensive herbaceous shallow water wetland. The slope of Dogleg Branch's reclaimed channel is steeper than the slopes of its unmined channels, and the reclaimed segment, which functions well vertically within the banks of the channel, does not access its floodplain properly, largely due to its entrenched nature. Due to the entrenchment underway, it is unlikely that the reclaimed segment of Dogleg Branch will ever communicate with its floodplain, as its unmined segments do. Entrenchment is a measure of channel incision-- specifically, the width of the floodprone area, at a water level at twice bankfull, divided by the bankfull width. Entrenchment may cause excessive erosion, which may result in adverse downstream conditions, such as turbidity and lost habitat. Proceeding perpendicular to the flow of the water, entrenchment extends the channel into the riparian wetlands or uplands alongside the stream, dewatering any nearby wetlands and disturbing the local hydrology. Especially if entrenchment is associated with head-cutting, which operates up the streambed, the resulting erosion deepens the channel sufficiently that the water in major storm events can no longer enter its floodplain, but rushes instead downstream. Although the failure of Dogleg Branch to access its floodplain would not affect macroinvertebrates, which do not use the floodplains, the failure of the reclaimed stream to access its floodplain harms fish, which cannot access the floodplain during high water levels to forage, spawn, and escape predators or high water volumes, and reduces valuable aquatic-upland ecotones. This failure also reduces the ability of the stream to attenuate floodwaters. By chance, Charlotte County's stream- restoration expert Frederick Koonce visited Dogleg Branch shortly after a June 2003 storm event and saw the water from the stream enter the floodplains adjacent to the unmined segments of Dogleg Branch, but not the reclaimed segment. The less-rigorous approach of incidental stream restoration, at least in the mid-1990s, is evident the summer 1994 semi-annual report on Dogleg Branch, in which Dr. Clewell provides a detailed discussion of the biological aspects of the reclamation of this site. Implying that the incidental stream element of the Dogleg reclamation project may be nine years younger than provided in the parties' stipulation, Dr. Clewell writes: The temporary land use area was abandoned and reclaimed during the autumn of 1993. The perimeter canal was filled and the access road removed between Dogleg marsh and the unmined tip of original Dogleg Branch. Within a few days of a site inspection on December 2, 1993, final grading and revegetation had been completed, and water was discharging from Dogleg marsh into unmined Dogleg Branch for the first time ever. The water was free of turbidity. The entire connection had been sodded with bahiagrass turf. Dogleg Branch enjoys good water quality. On the two days that Charlotte County water quality scientist William Dunson tested its waters, in October 2003 and March 2004, the reclaimed Dogleg Branch had dissolved oxygen of 6.8 and 8.6 mg/l, iron of 325 and 212 ug/l, manganese of 41 and 22 ug/l, and aluminum of 160 and 132 ug/l. The Class III water standard for dissolved oxygen is 5 mg/l, except that daily and seasonal fluctuations above 5 mg/l must be maintained. The Class III water standard for iron is no more than 1.0 mg/l (or 1000 ug/l). There are no Class III water standards for manganese and aluminum. Dogleg Branch also passed chronic toxicity testing for reproductivity and malformation. However, Dogleg Branch is distinguishable from at least one of the OFG streams. Dogleg Branch is a much less complex restoration project because reclamation scientists did not need to re-create headwaters, the first 600 feet of stream downstream of the headwaters, or flow-through wetlands. Also, the mined segment of Dogleg was much shorter than the mined segment of the Stream 1e series: 1000 feet versus 2039 feet for the Stream 1e series. Betraying an emphasis on forested wetlands to the exclusion of streams, Dr. Clewell places Hall's Branch a close second to Dogleg among stream-reclamation projects. However, DEP properly did not add a second stream to its list of successful stream-reclamation projects. Reclaimed Hall's Branch is not close to performing the functions of reclaimed Dogleg Branch, and, because of the large gap between Dogleg and all of the other reclaimed streams, it is irrelevant which of them occupies second place. The most visible shortcoming of the reclaimed stream at Hall's Branch is its color. Parts of the water in the reclaimed stream within Hall's Branch are highly discolored with iron flocculent leaching from the surrounding mesic forest and shrub communities. Mr. Dunson's water quality tests in reclaimed Hall's Branch, in October 2003 and March 2004, revealed iron levels of 117,000 ug/l and 4025 ug/l, which are 117 times and 4 times the Class III water standard. Dissolved oxygen was also well below Class III standards at 1.5 mg/l and 2.1 mg/l. Manganese was 1880 ug/l and 392 ug/l, and aluminum was 226 ug/l and 35 ug/l. Like Dogleg Branch, Hall's Branch also passed chronic toxicity tests for reproductivity and malformation. The hydrological connection between the surficial aquifer and the reclaimed stream at Hall's Branch is probably interrupted. Mr. Carter, who did not visit Dogleg Branch, inspected Hall's Branch and found the water table 12 inches below the surface. A soil sample reveals overburden with a layer of topsoil. The CDA seems to indicate that part of Hall's Branch was backfilled with sand tailings of an unspecified depth and part of it was merely contoured overburden--a pattern suggestive of that planned for OFG. The CDA states that trees were planted in mulched areas. The reclaimed forest is dominated by cypress, not the targeted wetland hardwoods. Jamerson Junior is a 4.3-acre reclamation site permitted as a wetland forested mixed community in 1984, constructed by late 1985, and released in early 1996. Part of the reclaimed stream is a second-order stream. Like Hall's Branch, Jamerson Junior also shows signs of orange-colored water leaching in to the stream from the nearby mesic zone. However, the water quality in Jamerson Junior is closer to the water quality in Dogleg Branch than Hall's Branch. Mr. Dunson's iron readings, in October 2003 and March 2004, were 583 ug/l and 195 ug/l, which are within Class III standards. Dissolved oxygen was slightly higher than at Dogleg Branch: 7.0 mg/l and 8.0 mg/l. Manganese was 136 ug/l and 21 ug/l, and aluminum was 391 ug/l and 101 ug/l. However, Jamerson Junior failed chronic toxicity testing for reproductivity, but passed for malformation. This is the only stream that IMC also tested for toxicity, and IMC obtained similar results, according to Dr. Durbin. Soil samples reveal a highly variable soil structure underlying Jamerson Junior. Subsequent reclamation work on the stream required the addition of material to change the elevation of the stream bed and possibly to change the drainage characteristics of the original backfilled material. On the day that Mr. Carter visited Jamerson Junior on August 14, 2003, he found the stream flowing. During the wet season, the water table should normally be expressed in the stream. Presenting a more interrupted relationship between the surficial aquifer and the stream than at Hall's Branch, Jamerson Junior displays no connection between the stream bed and water table, at least to a depth of 40 inches. A soil boring revealed water immediately underneath the stream bed, but, at about 15 inches beneath the bottom of the bed, the soil dried to moist; at 40 inches, Mr. Carter found the water table under the stream. Likewise, the Jamerson Junior channel was poorly integrated with the surrounding wetlands and uplands. At the banks of the stream, Mr. Carter did not find the water table within 80 inches of the surface, which is additional evidence of a discontinuity between the water table and the stream. Much of the reclaimed forested areas are mesic, not hydric. The reclaimed floodplains are narrower than the floodplains in the unmined adjacent area, and the slope of the reclaimed channel is steeper than the slope of the unmined channel. The reclaimed uplands are infested with cogongrass, although less than is present at Dogleg. Lizard Branch is a 6-acre reclamation site permitted as a swamp community in 1983 and modified in 1991, constructed by 1994, and released in 1996. Few of the planted gums and maples are surviving. The uplands surrounding the reclaimed area are infested with cogongrass, which has penetrated the shallower wetlands. Lizard Branch is one of the lowest- functioning forested wetlands. Lizard Branch joins Jamerson Junior as one of only two of six reclaimed stream sites to fail chronic toxicity testing for reproduction, although it passed for malformation. Lizard Branch had the highest two dissolved oxygen readings of all six sites tested by Mr. Dunson: 12.6 mg/l and 7.1 mg/l. Its iron levels were 547 ug/l and 352 ug/l. Manganese was second lowest, behind only Dogleg Branch, at 71 ug/l and 30 ug/l. Aluminum was second highest at 445 ug/l and 45 ug/l. Lizard Branch is an interesting, recent reclamation site for several reasons. Lizard Branch represents a relatively recent instance of the destruction of a stream without its re- creation and either the failure of the incidental reclamation of a stream or the subsequent permission by DEP to allow the permanent elimination of the stream. Mr. Winchester testified that he could not even find a stream at Lizard Branch. Charlotte County ichthyologist Thomas Fraser treated Lizard Branch as a stream, but grouped it with marshes in his analysis, apparently due to the lack of channel formation. The fact is that, despite any effort to reclaim a stream, little, if any, stream structure is present at Lizard Branch. However, a stream once flowed over the reclaimed portion of Lizard Branch. In the summer 1994 semi-annual report, Dr. Clewell notes that Brewster Phosphate received a dredge and fill permit in 1983 to dredge and fill the "headwaters of two streams, Dogleg Branch and Lizard Branch" in connection with the mining at Lonesome Mine. Dr. Clewell adds: The permit was issued with the stipulation that the streams and their attendant riverine forest would be restored on adjacent physically reclaimed lands, concomitant with mining. The permit further stipulated that restoration would be monitored and that semi-annual reports documenting progress in vegetational restoration would be submitted to [DEP.] In the report, Dr. Clewell notes that reporting on Lizard Branch has been "discontinued" and DEP issued a new permit in 1991. The 1991 permit modification is not part of this record, but the result was the elimination of a stream, or at least any signs of a stream ten years after construction. Three of the remaining reclaimed-stream projects were built at about the same time as Lizard Branch project. For only one of these projects did the reclamation scientists explicitly target a stream. Permitted in 1985 and subject to a consent order in 1996, constructed in 1991-92 and 1995, and not yet released, 9.6-acre Tadpole Wetland (H-SPA(1)) was targeted to be about one-third wetland forested mix and two-thirds freshwater marsh. Much cogongrass has infested Tadpole, whose stream enters the Alafia River floodplain and leads to a ditch that runs the remainder of the distance to a point close to the Alafia River. Tadpole's water passed chronic toxicity testing for reproductivity and malformation. However, its water violated Class III standards for dissolved oxygen, with readings of 2.8 mg/l and 2.1 mg/l, and for iron, with readings of 11,300 ug/l and 1100 ug/l. Manganese levels were 166 ug/l and 20 ug/l, and aluminum levels were 660 ug/l--the single highest reading among the four reclaimed streams tested--and 95 ug/l. Permitted in 1985, constructed by 1996, and not yet released, Pickle Wetland (H-SPA(1)) is a 34-acre site, 0.8 acres of which was to be reclaimed as stream. A deep marsh that requires treatment of its nuisance exotics, such as cattails and primrose willow, Pickle is just northeast of Tadpole and a few miles north of Morrow Swamp and Ag East. Pickle's stream is surrounded by uplands. Pickle is the only reclaimed stream of six tested to fail chronic toxicity testing for malformation, although it passed for reproductivity. Pickle has the lowest dissolved oxygen of the six reclaimed streams tested by Mr. Dunson: 0.8 mg/l and 1.2 mg/l. Its iron levels violated Class III standards in October 2003, with a level of 4230 ug/l, but passed in March 2004, with a level of 786 ug/l. Manganese was 127 ug/l and 72 ug/l, and aluminum was 107 ug/l and less than 5 ug/l. Permitted in 1991, constructed in 1995, and not yet released, Trib A ((BF-ASP(2A)) is a 120-acre site to be reclaimed as a wetland forested mix, but it includes a slough that empties into an unmined channel with streamflow. To the extent that a reclaimed stream channel is discernible on Trib A, nine years after the completion of its reclamation, the channel is much more steeply sloped than the adjacent unmined channel-- steeper than the two percent slope, beyond which sandy stream bottoms begin to erode. Not surprisingly, the reclaimed channel has begun to head cut and entrench. In an adjacent unmined area, a stream exists within a floodplain with a very flat slope. In the mined area, the reclaimed floodplain is steeper, suggestive of impeded communication between the reclaimed stream and its floodplain. The groundwater communication at Trib A is almost as interrupted as it was at Jamerson Junior. At Trib A, the uppermost 20 inches of soil was saturated, at the time of Mr. Carter's site inspection. Beneath a moist soil layer, the water table occurred at 40-50 inches deep. Parts of Trib A were topsoiled, but the next layer down was originally from an area below the C horizon. However, the soil-formation process is underway. Permitted in 1995, constructed by 1998, and not yet released, 17.6-acre File 20-2B and 70-3 Dinosaur Wetland (FG- GSB(7)) was reclaimed as a freshwater marsh. Dinosaur is due south of Morrow Swamp and is a headwater wetland. The site is still undergoing treatment for cattails. The record describes little, if anything, about the status of this stream. The last two stream-reclamation reclamations were built at least five years after the last pair. Again, DEP and the phosphate mining company identified a stream as a target for only one of the projects. Permitted in 1989, 1992, and 1998, constructed in 1999, and not yet released, South Bradley (KC-HP(1A) is a 171- acre site, 1.7 acres of which was to be reclaimed as stream. South Bradley is just north of Pickle. The channel is steeply incised and deep at points. The channel runs through forested and unforested areas. Charlotte County ichthyologist Thomas Fraser found iron flocculent in South Bradley and no fish within this area of the reclaimed stream, but three species of fish in a nearby area. Permitted in 1999, constructed by 2003, and not yet released, MU R Wetland H (KC-HB(1)) is a 4.8-acre site to be reclaimed as wetland hardwood forest. Monitoring has not yet begun for this site. Although a tailwater system receiving water from a ditch running to a lake, rather than a natural stream, the channel that has formed in MU R Wetland H does not join the existing downstream channel; the two channels are offset by 75-100 feet. Also, the reclaimed floodplain of MU R Wetland H is more steeply sloped than the floodplain of the adjacent unmined area. The slope of the reclaimed channel is steeper than the slope of the unmined channel, and, due to poor design parameters, the new channel is headcutting into the floodplain, which does not appear to be communicating appropriately with the stream. Combining a more steeply sloped reclaimed floodplain with a headcutting reclaimed stream means, among other things, substantially less communication between the stream and its floodplain. The hydrology of MU Wetland H appears to have been ineffectively reclaimed. In the forested wetland a short distance from the stream, the soil remained unsaturated until 80 inches deep. Closer to the stream, the soil was saturated at a depth of 18-20 inches, but the underlying overburden remained dry to a depth of 70 inches, indicating again a failure to reclaim the water table at appropriate depths. As with all of the almost countless reclamation sites on which the parties' expert witnesses copiously opined, MU R Wetland H is not well-developed in the record in terms of pre- mining conditions, design elements, construction techniques, and post-reclamation conditions. However, the dislocated stream that has formed within this reclaimed wetland stream reinforces the principle that even incidental stream reclamation requires some engineering. The excessive reliance upon a contoured valley to self-organize into a stream, as noted above, has impeded the progress of the science of stream restoration, as applied to mined land in Florida. This factor is unique to streams and does not apply to uplands and wetlands. However, another factor has impeded progress in reclaiming successful systems--whether uplands, wetlands, or streams. This factor is undue emphasis on the identity of post-reclamation vegetation, as compared to pre- mining or reference vegetation, at the expense of function. Charlotte County and the Authority stressed the process of the identification of vegetative species, at the expense of undertaking complex functional analysis and attempting to situate reclaimed systems in the process of energy consumption and production. In part, their cases relied on showing that past reclamation projects, as well as that proposed for OFG, do not replicate pre-mining or reference-site vegetation. An undue emphasis on species identity suffers from two major flaws. First, as Dr. Clewell and Ms. Keenan testified, reclaimed sites undergo stages of colonization, and, during early stages, less-desirable species, such as Carolina willow and wax myrtle, may predominate at more-desirable canopy-forming species succeed them. Ms. Keenan added that the life expectancy of Carolina willow, in this part of Florida, is about 25 years, and no reclaimed site older than 15 years is dominated by Carolina willow. Second, any measure of species identity risks the elevation of replication over function, as DEP has already recognized. A criterion of replication, for example, discredits a reclaimed site with a lower species-identity score because it has been colonized by a greater share of more-desirable species than occupy the reference site. DEP has wisely discontinued the practice of assessing reclamation success in partial reliance upon the Morisita's Index. This index measures the identity of species between two sites or the same site pre-mining and post-reclamation, as a criterion of successful wetlands reclamation. In a similar vein, DEP has recently recognized that vegetative analysis cannot preemption functional analysis, especially as to streams. This recognition is evidenced by a report entitled, "Riparian Wetland Mitigation: Development of Assessment Methods, Success Criteria and Mitigation Guidelines," which was managed by Ms. Keenan, revised May 10, 2001, and filed with the U.S. Environmental Protection Agency Grants Management Office (Riparian Wetland Mitigation). Riparian Wetland Mitigation notes the unsatisfactory history of stream reclamation projects with their emphasis on vegetation to the exclusion of stream hydrology and geomorphology. Riparian Wetland Mitigation states: The more recent methods [of stream restoration] recognize that streams are not simply water conveyance structures, but are complex systems dependent on a variety of hydrological, morphological, and biological characteristics. It is now recognized that in order to successfully restore or create a stream, hydrology, geology and morphology must be considered in the design. Noting the increasing extent to which the phosphate mining industry is applying for permits to mine more and larger stream systems and reclaim them on mined land, Riparian Wetland Mitigation frankly admits: The success criteria included in permits issued by the Department for these newly created streams have been based primarily on vegetational characteristics as is typical of most permits requiring wetland mitigation. However, vegetation alone is a poor indicator of stream function and community health. The results of regular permit compliance inspections of existing stream mitigation projects . . . have suggested that for several projects, although existing riparian vegetation was meeting or trending toward meeting permit requirements, problems existed with site hydrology and habitat quality of the stream channel itself. DEP thus adopted a rapid bioassessment method known as BioRecon, which tests macroinvertebrates, and added two other components: habitat assessment and physical/chemical characterization. DEP then performed "BioRecon, habitat assessment, and physical/chemical sampling" on eight reclaimed streams. Of the eight sites sampled, "only one passed the BioRecon and Habitat Assessment." (It is unclear whether Riparian Wetland Mitigation intends to imply that this site-- obviously, Dogleg Branch--also passed the physical/chemical composition, but it probably did.) DEP then tested smaller, unmined streams and confirmed that they, too, could pass BioRecon and Habitat Assessment. Riparian Wetland Mitigation states that DEP will collect data from comparable unmined streams and attempt to relate geomorphological, hydrological, and biological data to develop more refined criteria by which to assess proposed stream-reclamation projects. When DEP issues these criteria, the likelihood of success of a specific stream-reclamation project will be easier to assess. Until then, the assessment of a specific stream-reclamation project remains more difficult, in the context of past reclamation projects that have reduced or even eliminated important functions of streams. Although DEP's new guidelines for stream restoration will mark a transition from a predominantly vegetative to a multi-variable analysis of stream function, even a predominantly vegetative analysis of stream function is superior to IMC's analysis of streams predominantly from the perspective of flood control, as set forth in the CDA prior to the Altman Final Order. In a remarkably candid admission of the difficulty of reclaiming the many functions of unaltered stream systems, including their riparian wetlands and floodplains, IMC, in its response to RAI-102 in the CDA, states: Although it is impossible in a reasonable amount of time to expect to restore the functionality of the creek systems and associated uplands which historically occurred on the One site and are proposed for mining, it is reasonable to conclude that the reclamation plan restores the primary functions of the watershed[:] i.e. the capture, storage, distribution, and release of precipitation. IMC's subsequent discussion in RAI-102 emphasizes the efficacy of mitigation, from a biological perspective, but only as to stream systems whose pre-mining condition is substantially altered. For relatively unaltered systems, IMC's message remains that the reclamation of functions, besides water quantity, within a reasonable period of time is "impossible." Summary of Findings on Past Mitigation/Reclamation Any attempt at assessing past reclamation projects is impeded by the general lack of data presently available, for each reclamation site, describing pre-mining hydrological, topographical, soil, and geological conditions; the functions of pre-mining communities; reclamation techniques; post-reclamation hydrological, topographical, soil, and geological conditions; and the functions, as they have evolved over time, of reclaimed communities. For post-reclamation water tables, the auger and shovel work of one or two men substitutes for several years of weekly piezometer readings in the wet season and monthly piezometer readings in the dry season--correlated to daily rainfall data collected at the same site. For post-reclamation water quality, a few preliminary toxicity and a few dozen water quality readings--some under less than optimal conditions-- substitute for systematic water-quality testing of a broad range of parameters, again over years. For post-reclamation soils, one soil scientists finds an A horizon and concludes substantial formation has taken place within 10 years; another finds an A horizon--never the same one at the same place--and concludes topsoil transfer; and both are probably correct. Absent better data, reliable analysis is difficult because a wide variety of factors may have contributed to the successes of SP(2D) and Dogleg and the failures of too many other sites to list. Even so, a few facts emerge. IMC can reclaim extensive areas of uplands, deep marshes, and cypress swamps, although difficulties remain with each of these types of reclamation projects. With greater difficulty, IMC can reclaim pine flatwoods and palmetto prairies. With even greater difficulty, IMC can also reclaim forested wetlands, except bay swamps. Far more difficult to reclaim than the communities mentioned in the preceding paragraph are extensive shallow wetlands, seepage bayheads, and streams. Any finding of present ability to reclaim these systems must uneasily account for the numerous failures littering the landscape, the failure ever to reclaim successfully a bayhead as bay swamps typically occur in the landscape, and the unsettling fact that nearly all reclamation successes of shallow wetlands are small patches-- almost always far smaller than designed. Any finding of present ability to reclaim these systems must rely heavily on SP(2D) and Dogleg Branch and the design of the current reclamation plan. The probability of the successful reclamation of any community, but especially extensive shallow wetlands, seepage bayheads, and streams, requires careful analysis of each community proposed to be mined and each community proposed to be reclaimed. For each such community, it is necessary to assess its ultimate functions of consuming and producing energy within a robust, sustainable ecosystem. Additional Features of OFG, Mining, and Reclamation Introduction The preceding sections detail the ERP, CRP approval, and WRP modification and other mitigation sites involving the reclamation of uplands, wetlands, and streams. This section adds information concerning OFG in its pre-mining condition, the proposed mining operations, and the proposed reclamation. OFG IMC adequately mapped the vegetative communities at OFG. As Doreen Donovan, IMC's wetlands biologist testified, trained persons using the FLUCFCS system of classifying vegetative communities tend to fall into one of two categories: lumpers or splitters. Scale dictates FLUCFCS code in many cases. Where one biologist may designate a larger, more varied area with one code, another biologist may designate the same area with several codes. The purpose of FLUCFCS coding dictates the scale. Subordinating vegetative-identity analysis to functional analysis undermines the arguments of Charlotte County and the Authority for an unrealistic level of precision in this exercise. The discrepancies in vegetative mapping noted by Mr. Erwin were insignificant. Many were the product of scaling differences, as noted in the preceding paragraph. Some were the product of distinctions without much, or any, difference, given the context and extent of the proposed activities. For present purposes, absent demonstrated differences in wildlife utilization, groundwater movement, or soil, distinctions between, for example, xeric oak and sand live oak on ten acres are essentially irrelevant. In total area, as compared to the 4197 acres of OFG, the claimed discrepancies did not rise to the level of noteworthy. As for the wetlands at OFG, DEP's acknowledged expert in wetlands identification, Deputy Director Cantrell, personally visited OFG and confirmed the accuracy of the wetlands determinations made three years earlier in December 2000 when DEP issued a Binding Wetland Jurisdictional Determination, which remains valid through December 2005. Deputy Director Cantrell noted minor omissions that might total a couple of acres, but these are insignificant, again given the scale of the proposed activity. The sole material flaw in IMC's mapping of OFG is in the omission of floodplains of the tributaries from Map C-3, although Dr. Garlanger's hydrological analysis, described below, adequately considered the storage and conveyance characteristics of these floodplains. Proper analysis of the tributaries' functions, besides flood control, and proposals to reclaim them is impeded by IMC's failure to depict graphically the 2.3-, 25-, and 100-year floodplains. The record suggests that BMR may have waived any requirement for maps of the floodplains except for those of Horse Creek, but the record does not suggest that, if BMR actually waived this requirement, it thus insulated the CDA from scrutiny with respect to all the information that would have been contained in floodplain maps or assured IMC of favorable analysis of this missing information. Charlotte County hydrologist John Loper prepared floodplain maps, which are Charlotte County Exhibits 1762 (mean annual floodplain), 1763 (25-year floodplain), and 1764 (100- year floodplain). These are credited as accurate depictions of the floodplains of the tributaries of Horse Creek. Mr. Loper's maps reveal little difference between the 25- and 100-year floodplains over much of OFG, including the Panhandle. The two floodplains of Stream 3e are slightly different, but the two floodplains of the Stream 1e series are less noticeably different. Focusing on the 25-year floodplain, the only wide, lengthy floodplain outside of the no-mine area is the floodplain along the Stream 1e series, which is the widest band of floodplain outside the no-mine area. At places, the floodplain of the Stream 1e series is as wide as the corresponding floodplain of Horse Creek. Even at its narrowest, which is along Stream 1ee, the floodplain of the Stream 1e series is as wide as that of Stream 2e and wider than that of Stream 3e. No 25-year floodplain runs along ditched Stream 3e?. The only other portions of the 25-year floodplain contiguous to the floodplain of Horse Creek, but outside the no-mine area, are the large wet prairie at the head of Stream 9w, the large wet prairie at the head of Stream 5w, and the headwater wetlands of Streams 1w-4w. As already noted and discussed in more detail below, all of these wetland systems, including the headwaters of Streams 1w and 3e, are lower-functioning than the wetland system associated with the Stream 1e series. As noted above, over half of the area to be mined is agricultural and another quarter of the area to be mined is uplands consisting largely of sand live oak, pine flatwoods, and palmetto prairie. Accordingly, OFG is characterized by native flatwoods soils, which exhibit high infiltration rates, but restricted percolation due to underlying hardpan or loamy horizons. About one-fifth of the soils at OFG are xeric soils. The wet season water table in the wetter areas will be 0-2 feet below grade and in the uplands over 3 feet below grade. Nothing in the record suggests that IMC will have much difficulty in reclaiming agricultural land or sand live oak communities. Nothing in the record suggests that any of the sand live oak that will be mined is atypically valuable habitat. As noted above, the pine flatwoods and palmetto prairie are more difficult to reclaim, but the pine flatwoods and palmetto prairie at OFG are not atypical instances of these common upland habitats. Some of these communities have been stressed by the lack of fire, so that hardwoods, such as oaks, have become sufficiently established as to resist thinning by fire. Lack of fire has also resulted in overgrown vegetation in more xeric areas. Among forested wetlands, IMC will mine 43 acres of mixed wetland hardwoods, 12 acres of hydric pine flatwoods, 9 acres of bay swamps, and 6 acres of hydric oak forests. Among herbaceous wetlands, IMC will mine 95 acres of wet prairie and 67 acres of freshwater marsh. Map F-3 depicts these wetlands with color-coding for ranges of wetlands values, under the Wetland Rapid Assessment Procedure (WRAP), which is used by the U.S. Army Corps of Engineers. Following a weeklong investigation of wetlands at the Ona Mine, as well as other IMC mines in the vicinity, the U.S. Army Corps of Engineers expressly approved revisions to WRAP to accommodate local conditions at OFG. DEP used a different assessment procedure, but WRAP remains useful for general indications of wetlands function. The WRAP scoring scale runs from 0-1, with 1.0 a perfect score. For ease of reading, the following sections shall identify wetlands scoring below 0.31 as very low functioning, wetlands scoring from 0.31 to 0.5 as low functioning, wetlands scoring from 0.51 to 0.7 as moderate functioning, wetlands scoring from 0.71-0.8 as high functioning, wetlands scoring from 0.81-0.9 as very high functioning, and wetlands scoring from 0.91-1.0 as the highest functioning. The asymmetry of the labeling scheme is to allow differentiation among the wetlands in the highest three categories, which, at OFG, are disproportionately represented, as compared to the lowest three categories. The purpose of these descriptors is only to differentiate relative values. As already discussed, the Map F-2 series identifies existing wetlands alphanumerically and by community, and Map I-2 similarly identifies all post-reclamation communities. In contrast to all reclaimed wetlands, which, as already noted, start with an "E" or "W," all existing wetlands start with a "G" or "H." The ease with which freshwater marshes are reclaimed obviates the necessity of extensively analyzing the condition of marshes presently at OFG, absent evidence of atypical habitat value. In general, the wetland corridor of Horse Creek, as defined by the no-mine area, ranges in quality from very high functioning in Section 29, which is the southernmost end of Horse Creek in OFG, to high functioning north of Section 29. However, narrow fringes of this corridor north of Section 29 are low functioning. Starting from the south, in Section 29, three wetlands are outside of the no-mine area: H031/H032/H033/H034, the G005 wetland complex, and a fringe of the wetlands running adjacent to Horse Creek--the western edges of G262, G266, and G259A are outside of the no-mine area. H031 is the largest part of the H031 complex and is mixed wetland hardwoods. H032 is a small freshwater marsh, and H033 is a hydric oak forest of the same size. H034 is a slightly larger wet prairie. H033 is low functioning. The remainder are high functioning. IMC will reclaim the same communities, as an ephemeral wetland complex. Pre-mining and post-reclamation, this wetland drains into West Fork Horse Creek. Considerably larger than H031, the G505 wetland complex is the headwater wetland of Stream 1w. G512 is the largest component of the G505 wetland complex and is wetland forested mixed. G513 is the next largest component and is a bay swamp. G514 is a fringe wet prairie. Slightly larger than G514, G511 is hydric oak forest. G507 is mixed wetland hardwoods, G506 is a small freshwater marsh, and G505 is a cattle pond. The mixed wetland hardwoods and fringe wet prairie are very high functioning, the bay swamp is high functioning, and the remaining wetlands are moderate functioning. IMC will reclaim the G505 wetland complex as a single bay swamp. G262 and G266 are wet prairie and hydric rangeland, respectively. G259A is mixed wetland hardwoods. The wet prairie and hydric rangeland are moderate functioning, and the mixed wetland hardwoods is very high functioning. IMC will reclaim these wetlands as wet prairie. Section 20 contains the headwater wetlands of Streams 2w, 3w, 4w, and 5w. These are mostly marshes, and they are all low to moderate functioning. These systems have been heavily impacted by agricultural uses. IMC will reclaim these as headwater systems, mostly marshes. IMC will also create one small and one medium ephemeral wet prairie near the headwater wetland of Stream 4w. Section 19, which drains to West Fork Horse Creek, contains three wet prairies (H002, H005, and H006) and a complex consisting of a bayhead (H009A) surrounded by a mixed wetland hardwoods (H009), which is fringed by a small wet prairie (H008). These wetlands are all low to moderate functioning. IMC will reclaim the H008 complex with a bay swamp buffered by a temperate hardwood, and it will restore a cattle pond at the site of the H002 complex. The reclaimed bay swamp will drain to West Fork Horse Creek. Section 18 contains a very low functioning, small wet prairie (H056), which is the only wetland in one of the three lowest ranges of WRAP scores outside of the wetland corridor of Horse Creek. Section 18 also contains a small part of a large wetland that is mostly in Section 17. The latter wetland is addressed in the discussion of wetlands in Section 17. Section 17 contains the West and Central Lobes. The entire Central Lobe is in the no-mine area, but a large wet prairie (G188) abuts the wetlands in the no-mine area of the West Lobe. IMC will reclaim this wet prairie, which is low functioning, as improved pasture, with a strip of hardwood conifer mixed. Several wetlands unassociated with the West and Central Lobes are outside the no-mine area, but on either side of Stream 6w, which leads to the West Lobe. G183, which is the headwater wetland of Stream 7w, is a freshwater marsh, which is moderate functioning. IMC will not reclaim the existing portion of Stream 7w upstream of the no-mine area, so the connected headwater marsh will be reclaimed as an ephemeral wet prairie. South of Stream 7w is a group of four small wetlands: G089, G090, G091/G092, and G093/G094. G089 and G090 are very small wet prairies. G091 and G093 are freshwater marshes, and G092 and G094 are wet prairie fringes. G090 is low functioning, and G089 and G091 are moderate functioning. G093 is very high functioning, and G094 is high functioning. Even the maps on the February submittal CD are unclear, but it appears that G089 and G090 will be reclaimed as ephemeral wet prairies. IMC will reclaim G091 as a small freshwater marsh fringed by a large mixed wetland hardwood and G093 as a large freshwater marsh fringed on the east by a small mixed wetland hardwood. The last version of Figure 13B-8 depicts the small freshwater marsh as isolated, but the large freshwater marsh as ephemeral. IMC will also create two small ephemeral wet prairies due south of the West Lobe and one small ephemeral wet prairie just east of the north end of the West Lobe. About one mile west of Horse Creek is a large wet prairie surrounding a smaller freshwater marsh that has been ditched for agricultural purposes. Part of this wet prairie extends into Section 18. The portion of this system in Section 18 is low functioning; the rest of it is moderate functioning. IMC will reclaim this entire area as improved pasture, except for replacing a single cattle pond. Section 16 spans Horse Creek, but mostly covers an area east of the stream, including the East Lobe. The only wetland outside the no-mine area on the west side of Horse Creek is G076/G077, a freshwater marsh fringed by a wet prairie. This small wetland is moderate functioning, and IMC will reclaim it as an ephemeral wet prairie. East of Horse Creek lies Stream 5e and its flow- through wetland, G204/G205. Predominantly a wet prairie, G204 is low functioning. IMC will reclaim it as a bay swamp. A small fringe wet prairie (G177) lies at the south end of the East Lobe, outside of the no-mine area, but it is low functioning, and IMC will reclaim it as hardwood-conifer mixed. A mixed wetland hardwood (G096), which is moderate functioning, fringed by a wet prairie (G097), which is low functioning, lie just north of where the no-mine area of the East Lobe joins the main no-mine area along Horse Creek. IMC will reclaim this wetland as a freshwater marsh fringed on the east by a wet prairie, and this wetland will be connected to the wetlands of the Horse Creek corridor. A freshwater marsh (G058) lies outside the no-mine area just north of the northeast tip of the East Lobe. This wetland is moderate functioning. IMC will reclaim this site as improved pasture, but will create a small ephemeral wet prairie just to the west of G058 and a larger freshwater marsh to the west of the created wet prairie. Section 8 contains two large areas of wet prairie (G048 and G047) at the head of Stream 9w. These wet prairies are moderate functioning, as are a couple of small wet prairies in Section 8 at the western boundary of OFG. IMC will reclaim these areas mostly as improved pasture, although it will create a large, connected wet prairie over the southeastern part of G048, but extending farther to the south and east. This reclaimed wet prairie will form the headwater wetland of reclaimed Stream 9w, which, as already mentioned, will be shortened from its current length. The only other wetland in Section 8 and outside the no-mine area is a freshwater marsh (G052). This marsh is high functioning. IMC will reclaim this site with a marsh and wet prairie. Like Section 16, Section 9 spans both sides of Horse Creek. On the west side of Horse Creek is mixed wetland hardwoods (G055) fringed by hydric woodland pasture (G054). The mixed wetland hardwoods is high functioning, and the hydric woodland pasture is moderate functioning. IMC will reclaim this site with a gum swamp fringed by temperate hardwoods upland. On the east side of Horse Creek, a small wet prairie (G167) is outside the no-mine area. This very high functioning wet prairie is connected to a large bay swamp (G166) to the north. The bay swamp, which is high functioning, lies partly within and partly outside the no-mine area and is connected to the wetland corridor of Horse Creek. Although high functioning, G166 is overdrained by a tile drain system that drains the citrus grove immediately upland and east of G166. Two mixed wetland hardwoods, which are outside the no-mine area, fringe the bay swamp; they are high functioning. IMC will reclaim a gum swamp for the wet prairie and all mixed wetland hardwoods for the east side of the bay swamp. Just north of the bay swamp that straddles the no- mine boundary is a much smaller bay swamp (G163) fringed by mixed wetland hardwoods (G164) that also straddle the no-mine boundary. Also connected to the wetland corridor of Horse Creek, these wetlands are very high functioning, and IMC will reclaim them with pine flatwoods. Between these two bay swamps straddling the no-mine boundary and the headwater wetland of Stream 8e is a small wet prairie (G041), which is moderate functioning and outside the no-mine area. IMC will reclaim this site with another ephemeral wet prairie. At the southern tip of the headwater wetland of Stream 8e is hydric flatwoods (G157), which is moderate functioning. IMC will reclaim this connected wetland with sand pine flatwoods. A smaller hydric woodland pasture (G154) also connects to another section of hydric flatwoods, which is in the no-mine area between the headwater wetlands of Streams 8e and 7e. The hydric woodland pasture is moderate functioning, and IMC will replace it with hardwood-conifer mixed, although IMC will reclaim a somewhat larger area of mixed wetland hardwoods just north of the present site of the hydric woodland pasture, where no wetland presently exists. The remaining wetlands outside the no-mine area in Section 9 are six isolated wet prairies. They are small wetlands, except for G039/G040, which is a wet prairie fringing a cattle pond, and G039, which is at the eastern boundary of OFG. However, they are all high functioning, even the wet prairie fringing the cattle pond. In this general area, IMC reclaims three ephemeral wet prairies, much closer to the no- mine area than the sites of the six isolated wet prairies, and a small freshwater marsh fringed by a community that is not listed in the legend in Map I-2. Interestingly, IMC also reclaims a large area of shrub and brushland and larger area of sand live oak, again closer to the no-mine area than the sites of some of the six isolated wet prairies. The remainder of the area will be reclaimed as improved pasture. Section 4 contains no-mine area in its southeast corner: Stream 2e and the Heart-Shaped Wetland. Almost all of the wetlands outside the no-mine area in Section 4 are in the top three scoring categories of functioning. Of the six wetlands complexes on OFG that are, in whole or in part, highest functioning, four of them are in Section 4. The two highest functioning wetlands outside Section 4 are in the no-mine area, and one of the highest functioning wetlands in Section 4 is in the Heart-Shaped Wetland. Three of the highest functioning wetlands are thus to be mined. Outside of Section 4, there are 14 wetlands or wetlands complexes outside the no-mine area that are in the second- and third-highest scoring categories. These are the mixed wetland hardwoods (H031) in Section 29; a small piece of mixed wetland hardwoods (G259A) straddling the no-mine boundary in Section 29; the bay swamp and mixed wetland hardwoods to the north in the headwater wetland of Stream 1w, which straddles Sections 29 and 20; the freshwater marsh partly fringed by wet prairie (G093) south of Stream 6w in Section 17; the freshwater marsh (G052) connected to Stream 9w and straddling Sections 17 and 8; the mixed wetland hardwoods flow-through wetland (G055) in Stream 9w and straddling Sections 8 and 9; the two bisected bay swamps (G166 and G163) and their mixed wetland hardwoods fringes in Section 9; and the six isolated wet prairies in the northeast corner of Section 9. In Section 4, there are only nine wetlands or wetlands complexes outside the no-mine area that are not in the second- or third-highest scoring categories, and all but two of them--a very small wet prairie fringe (G006) and half of a larger hydric woodland pasture (G105)--are at least moderate functioning. The wetlands in Section 4 fall into three categories: connected to the Stream 1e series, connected to Streams 3e and 3e?, and isolated. The long connected wetland of Stream 1e is mixed wetland hardwoods (G110). This wetland is high functioning, except for the headwater wetland of Stream 1ef, which is highest functioning. A narrow strip of wetland forested mixed (G132) runs along Stream 1ee. This wetland is moderate functioning. Proceeding from south to north, upstream the Stream 1e series, a freshwater marsh (G129) immediately upstream of Stream 1ee is high functioning, as is a smaller freshwater marsh (G125) immediately upstream of Stream 1ed. Two gum swamps (G123 and G121) in the flow-through wetland at the head of Stream 1ed are very high functioning, as is a freshwater marsh (G126) in the same wetland complex. Just downstream of Stream 1ef is a small freshwater marsh (G115) that is high functioning. Part of the mixed wetland hardwoods abutting this marsh to the east is very high functioning. Just upstream of Stream 1eb is the largest wetland complex of the Stream 1e series wetlands system. The largest communities forming this complex are hydric flatwoods (G107) and mixed wetland hardwoods (G110). The mixed wetland hardwoods envelope a small freshwater marsh (G108) and are fringed on the north by a strip of wetland forested mixed (G102). At the northernmost end of this complex is hydric woodland pasture. All of these communities are high functioning except the hydric woodland pasture, which is moderate functioning, and the hydric flatwoods and half of the marsh, which are very high functioning. Working back downstream, IMC will reclaim the mixed wetland hardwoods of the stream corridor, neglecting to replace the complexity provided by the three of the four flow-through marshes (G108, G125, and G129), the larger headwater marsh (G126), and the two gum swamps. IMC will also neglect to replace even the wetland function of the large hydric flatwoods (G107) and smaller hydric woodland pasture, as these sites are reclaimed as upland communities: pine flatwoods and temperate hardwoods, respectively. However, IMC will add complexity by adding a small marsh abutting the temperate hardwoods, two small bay swamps along the west side of the upper end of the Stream 1e series, a band of hydric flatwoods on both sides of part of the upper stream and a thicker area of hydric flatwoods east of Stream 1ed, a moderately sized area of hydric palmetto prairie within the thicker area of hydric flatwoods, and a thickened wetland corridor--mixed wetland hardwood--along Stream 1ee. The long connected wetland of Stream 3e (G137), which is wetland forested mixed, connects to a headwater or flow- through wetland, whose southern component (G136) is also wetland forested mixed. These wetlands are moderate functioning. The remainder of the wetland upstream of Stream 3e is marsh (G135), wet prairie (G134), and mixed wetland hardwoods (G133); they are all high functioning. The narrow wetland corridor of Stream 3e? is high functioning. The headwater wetland of Stream 3e? is a freshwater marsh (G016) fringed on the south by wet prairie (G015) and the north by mixed wetland hardwoods (G014). The mixed wetland hardwoods is moderate functioning; the marsh and wet prairie are high functioning. Working downstream along Streams 3e and 3e?, IMC will reclaim a large freshwater marsh/shrub marsh complex, fringed by wet prairie, at the site of the large headwater wetland of Stream 3e?. In place of the ditch, where IMC will restore Stream 3e?, IMC will probably reclaim mixed wetland hardwoods. (At present, Map I-2 shows improved pasture, but that was before IMC agreed to reclaim Stream 3e?.) IMC will reclaim the wetland complex between Stream 3e? and 3e with the same vegetative communities, except that it will eliminate some of the present system's complexity by replacing the wet prairie with freshwater marsh. Although Map I-2 inadvertently omits any reclaimed wetland community along Stream 3e, Figure 13A5-1 shows reclaimed wetland forested mixed. There are four isolated wetlands in the vicinity of Stream 1e series. At the northern boundary of OFG is a small wet prairie (G027), which is high functioning. Just west of Stream 1ec is a small hydric flatwoods (G118), which is moderate functioning. Just south of this hydric flatwoods is a larger wet prairie (G119) with a small area of hydric flatwoods (G119A), which are both high functioning. Just east of Stream 1ec is a small wet prairie (G028), which is high functioning, even though it is ditched. IMC will reclaim the high-functioning wet prairie (G027) with a freshwater marsh, the small, moderate-functioning hydric flatwoods (G118) with hydric flatwoods and possibly part of one of the bay swamps, the high-functioning wet prairie/hydric flatwoods (G119) with rangeland abutting a freshwater marsh, and the small, high functioning wet prairie (G028) also with the upland community of rangeland. There are four isolated wetlands south and east of Streams 3e and 3e?. The two largest are freshwater marshes (G024 and G021) fringed by wet prairies (G023 and G022, respectively). These are all highest functioning, except that G023 is high functioning. The two smaller wetlands are wet prairies (G025 and G026), which are both very high functioning. IMC will reclaim all four of these wetlands at their present sites with the same communities, except that IMC will replace one very high functioning wet prairie (G026) with improved pasture. North of the headwater wetland of Stream 3e? are five isolated wetlands. The largest is a large freshwater marsh (G004) at the northeast corner of OFG. A wet prairie (G005) fringes the southern edge of this wetland complex, which is ditched. The marsh is high functioning, but the wet prairie is moderate functioning. Two smaller ditched marshes (G008 and G010) lie southwest of this large complex; they are moderate functioning. A small mixed wetland hardwoods (G007) fringed by a narrow wet prairie (G006), which are north of the two marshes, are moderate and low functioning, respectively. The final isolated wetland is a freshwater marsh (G012) fringed by wet prairie (G011) and connected by ditch to the G014 wetland complex. The marsh is high functioning, and the wet prairie fringe is moderate functioning. IMC will reclaim improved pasture at the sites of four of these five wetlands. At the site of the large freshwater marsh (G004), IMC will reclaim a freshwater marsh, which will be fringed by wetland forested mixed. The wetland forested mixed will be fringed by hydric oak forest, which will be fringed by palmetto prairie. IMC will mine 10,566 linear feet of streams, reclaiming 10,919 linear feet. The current condition of these streams has already been adequately addressed, largely by Mr. Kiefer's assessment in the Stream Reclamation Plan, described above. All the tributaries are Class III waters, although, as Deputy Director Cantrell testified, they might not meet all Class III water standards. In fact, it is unlikely, given the level of agricultural alteration, for these tributaries, both within and without the no-mine area, to meet all Class III standards. As Deputy Director Cantrell testified, the unditched streams are the Stream 1e series, Stream 3e, and Stream 5e, although upstream of OFG, Stream 5e and its headwater wetlands have suffered extensive agricultural impacts. With the exception of the Stream 1e series and probably Stream 3e, elevated levels of turbidity and nutrients and reduced levels of dissolved oxygen are to be expected in the water of the tributaries on OFG due to the extensive ensuing erosion and low- flowing characteristics of these streams. Mining Ditch and Berm System Six months prior to the commencement of mining of each block, IMC will construct a ditch and berm system between the block and the adjoining no-mine area. The ditch and berm system captures the stormwater runoff that would otherwise leave the mine site and releases the groundwater that would otherwise remain at the mine site. The phosphate mining industry began using ditch and berm systems during mining in the late 1980s and early 1990s. IMC has designed the ditch and berm system to capture the water from the 25-year, 24-hour storm event with several feet of freeboard. For storms not in excess of the design storm, the ditch, which runs between the berm and the mine cut, will carry water around the perimeter of the mining block. During periods of high rainfall, IMC will pump the water in the ditch into the mine recirculation system to prevent unintended discharges. When the mine recirculation system reaches its capacity, it releases excess water into Horse Creek upstream of OFG at two outfalls that have already received National Pollutant Discharge Elimination System (NPDES) permits for use with the Ft. Green beneficiation plant. Maintained during all phases of mining operations, ditch and berm systems have effectively protected water quality during mining operations. The only indication in this record of a breach of a ditch and berm system has been one designed to meet older, more relaxed standards. The other function of the ditch and berm system is to dewater the mine site and restore the water table to nearby wetlands in the no-mine area. The removal of the water from the surficial aquifer at the mine cut effectively lowers the water table by, typically, 52 feet, which is the average depth of the excavation at OFG. Lowering the water table in the mine cut by any sizeable amount creates a powerful gradient, which draws more water from the unmined, adjacent surficial aquifer to fill the void of the removed water. Unchecked, this process would fill the mine cut with water so as to prevent mining operations and empty nearby wetlands of water so as to deprive them of their normal water levels and hydroperiods. To prevent these diversions of the unmined surficial aquifer from taking place, pumps send the groundwater entering the mine cut into the mine recirculation system and ditch. To maintain adequate groundwater flow from the ditch into unmined wetlands, the ditch must maintain adequate water levels. While constructing the ditch and berm system, IMC will construct monitoring wells between the ditch and the wetland or surface water, which will indicate when groundwater flows are less than the pre-mining flows, for which IMC will have already collected the data. Varying permeabilities of adjacent soils or inadequate maintenance of the ditch may cause the system to fail to maintain the proper hydration of nearby unmined wetlands. Due to failures of its ditch and berm system, IMC has several times dewatered nearby wetlands. Recent failures occurred at the East Fork Manatee River in November or December 1999, the North Fork of the Manatee River in March 2000, and two more recent failures at the Ft. Green Mine. To maintain the ditch and berm system, an inspector will daily drive a vehicle along the top of the berm to check the berm and the water level in ditch. However, recharge wells are also necessary to ensure that the ditch and berm system prevents the dehydration of unmined wetlands is recharge wells. Recharge wells would reduce the frequency and extent of wetland drawdowns. Strategically located throughout the length of the ditch, recharge wells would be drilled into the bottom of the ditch to the intermediate or Floridan aquifer. By this means, recharge wells actively maintain appropriate water levels in the ditches and prevent drawdowns. IMC has several alternative sources for the water for these recharge wells: the water pumped from the surficial aquifer during the dewatering of the mine, the groundwater that has returned to areas already backfilled with sand tailings, or the water from the mine recirculation system, provided it is filtered. Notwithstanding testimony to the contrary, neither the CRP approval nor the ERP requires IMC to install recharge wells. These documents fail to impose upon IMC any specific action, if the monitoring wells reveal reduced or eliminated groundwater flows into the wetlands and surface waters. Both documents acknowledge the possibility that IMC may need to install recharge wells to recharge the ditch. In his testimony, Dr. Garlanger recommended the installation of floats on the top of each recharge well to allow the inspector visually checking the ditch and berm readily to check each recharge well at the same time. Clearly, the presence of floats atop recharge wells would allow early identification and repair of malfunctioning recharge wells, prior to the loss of water from the ditch and the dehydration of nearby unmined wetlands. 2. Mine Recirculation System In addition to recycling the water used in mining operations, the mine recirculation system draws on sources deeper than the surficial aquifer, as well as rain. Water leaves the mine recirculation system through evapotranspiration and surface runoff. When water leaves the system as runoff, during or after major storm events, it does so through NPDES outfalls, and the high water volumes associated with the storm generally assure that any contaminants in the discharged water are sufficiently diluted. 3. Sand Tailings Budget For OFG, IMC has presented a reasonable sand tailings budget. Dr. Garlanger, whose expertise in geotechnical matters finds no match on the opposing side, has opined that the supply is ample. Charlotte County and the Authority have challenged the adequacy of the sand tailings budget. In part, Charlotte County and the Authority base their challenge to the sand tailings budget in part on an earlier comment by Dr. Garlanger concerning changing volumes of sand tailings, but he adequately explained that their reliance was misplaced. As noted above, the sand tailings budget at OFG requires sand from the Four Corners and Ft. Green mines. Conjuring up images of a sand Ponzi scheme, Charlotte County and the Authority seem to argue, in part, that there are not enough sand tailings, and DEP has allowed phosphate mining companies that have run out of nearby sand to substitute a Land-and-Lakes reclamation for the more sand-intensive reclamation that had originally been permitted and approved. OFG is early enough in the post Land-and-Lakes reclamation era that, if sand tailings from post-reclamation excavations are being moved around, OFG will get them. The obligation imposed upon IMC to obtain sand tailings backfill is not contingent upon feasibility; IMC must backfill the mine cuts with sand. The possibility that DEP would allow OFG to abandon one of the central tenets of this reclamation project by substituting Land-and-Lakes reclamation for topographic replication is inconceivable. Reclamation BMR Reclamation Guidelines BMR program administrator James (Bud) Cates supervises reclamation by the phosphate mining industry. Mr. Cates and Janine L. Callahan, also of BMR, prepared a document entitled, "Guidelines for the Reclamation, Management, and Disposition of Lands within the Southern Phosphate District of Florida" (Reclamation Guidelines). The document is dated August 2002. Although it is marked, "draft," Reclamation Guidelines is a revision of the first draft, which was prepared in 1993. The Administrative Law Judge commends the authors and DEP for the close attention to detail that has resisted finalization for nine years, but it would be imprudent to disregard the second draft while awaiting the next novennial revision, especially when DEP offered it as an exhibit (DEP Exhibit 37). Consistent with an emphasis on functional analysis and the creation of vegetative, hydrologic, and soils conditions that facilitate self-organization, Reclamation Guidelines defines "reclamation" as: the attempt to identify and replace those components/parameters of a community, resulting in the creation of a functional natural community analog. Emphasis is placed on the creation of functional soil, hydrology, and floral precursors that serve as the basis for food-web development. Because of the ecological need for fully functional communities, analogs are typically designed on a whole habitat basis rather than being designed around the specific needs of one or two species. These analogs are designed to incorporate a maximum initial diversity potential, based upon the premise that with proper management, the initial input will yield, over time, maximum ultimate diversity. Reclamation plans for and the activities used to create these replacement communities will be guided by existing knowledge of earthmoving, soils, hydrology, vegetation, general ecology, and wildlife management. Data in every applicable field should be constantly collected and used to increase knowledge and improve the results of the reclamation of natural community analogs. Focusing on specific reclamation techniques for soils, Reclamation Guidelines adds: The use of Topsoil/Vegetative Inoculum (T/VI) is extremely important to the introduction of organic matter, soil microbes, mycorrhizae, and plant propagules. These factors are critical to the creation of a living soil precursor. The T/VI is also the best known source of plant propagules that will provide the diversity inherent in a given community. Therefore, to the extent of material availability and economic feasibility, T/VI is recommended for use in the replacement of natural community analogs. The goal should be a three to six inch average depth with a minimum depth of no less than one inch over the base of sand, overburden, or sand/overburden mixture. Where T/VI availability problems occur, an artificially created topsoil precursor may be used in combination with all available T/VI or as a replacement for T/VI. Topsoil precursor may be created by incorporating a mixture of overburden, clay, and organics (hay mulch, wood chips, manure, green manure, or combinations thereof). All artificially created topsoil precursors should contain an organic portion and should be treated with microbial and mycorrhizal inoculum. For Sandhill, which has the least burdensome requirements among the three habitats most analogous to sand live oak (sand pine scrub, xeric oak scrub, and sandhill), Reclamation Guidelines notes that the objective is to concentrate a "deep layer of well-drained sands around/upon a topographic high to prove an area of rapid, positive infiltration and positive down-gradient seepage." The reclaimed sandhill habitat is adapted to excessively drained sands and requires "substantial depth to water table (although not as excessive or deep as scrub)." For soils, Reclamation Guidelines offers two options: six to eight feet of sand tailings covered with a layer of T/VI from a suitable donor scrub or eight to ten feet of sand tailings covered with a minimum four inch layer of artificially created topsoil precursor. For sand pine scrub and xeric oak scrub, the soil requirements are the same, except that the first option is for sand tailings eight to ten feet deep, not six to eight feet deep. As already noted, CRP Specific Condition 8.b requires IMC to reclaim sand live oak and xeric oak scrub with "several feet" of sand tailings and three to six inches of topsoiling from donor scrub or, if topsoiling is not feasible, the seeding and disking of a green manure crop. (Although omitted, the feasibility condition presumably qualifies the topsoiling requirement because Specific Condition 8.b defines "feasible.") For Pine Flatwoods and Dry Prairie, Reclamation Guidelines notes that the objective is to locate these communities on moderately to poorly drained soils, so that the depth to the water table is moderate to shallow. Most vegetation of these two communities is adapted to predominantly sand soils. For soils, Reclamation Guidelines offers two options: two to four feet of sand tailings covered with a layer of T/VI from a suitable donor flatwoods/dry prairie area or two to four feet of sand tailings covered with a minimum four inch layer of artificially created topsoil precursor. As already noted, CRP Specific Condition 8.a requires IMC to reclaim pine flatwoods and dry prairie with a minimum of 15 inches of sand tailings and three to six inches of transferred or stockpiled topsoil, if feasible, or, if not, the seeding and disking of a green manure crop. For Wetland Mixed Forest, Reclamation Guidelines notes that this community will occupy the outer limit of the floodplain down to the stream channel and the forested edge of deeper marshes. Likely to receive runoff from major storm events, Wetland Mixed Forest should be designed to contain and slow runoff while maintaining sufficient water for wetland viability. For soils, Reclamation Guidelines offers three options: decompacted overburden to a depth below the dry season water table overlying by a layer of T/VI from an appropriate donor site, two to three feet of sand tailings under a layer of T/VI, or either overburden or two to three feet of sand tailings covered by a minimum of four inches of artificially created topsoil precursor. As already noted, ERP Specific Condition 14.b requires IMC to reclaim all forested wetlands by backfilling with sand tailings or overburden to an unspecified depth under "several inches of wetland topsoil," if feasible. However, for bay swamps, Specific Condition 14.b adds in boldface: "All reclaimed bay swamps shall receive several inches of muck directly transferred from forested wetland approved for mining." Reclamation Guidelines treats Bay Swamp (and Cypress Swamp) separately from other forested wetlands. Noting that Bay Swamps are in areas of significant surficial seepage or high average groundwater elevation, Reclamation Guidelines states that Bay Swamps require sufficient seepage to remain saturated or a deep organic profile at and below the average water table elevation. For soils, Reclamation Guidelines states: "Bay swamps require the placement of one to three feet of organic muck as a depressed lens. The muck should be obtained from a suitable donor wetland." For Non-Forested Wetland, which includes wet prairies and freshwater marshes, Reclamation Guidelines is of value more to identify why the phosphate mining industry and DEP have overseen the routine reclamation of deeper wetlands, but not shallower wetlands. Treating these two very different communities under the same category, Reclamation Guidelines states: "All of the sub-categories may be constructed on overburden, with the exception of sand pond." Although the overburden option for reclaimed forested wetlands seems a stretch, given repeated problems of mature tree growth into overburden relatively close to grade, the overburden option for reclaimed wet prairie, other than fringing deeper marshes when properly sloped, can no longer merit serious consideration, given only one successful, extensive shallow-wetland reclamation site--SP(2D), whose reclaimed soil is four inches of mulched topsoil overlying four feet of sand tailings. However, consistent with its Reclamation Guidelines, DEP did not differentiate between wet prairies and deep marshes in the soil-reclamation requirements contained in the ERP. ERP Specific Condition 14.c allows backfilling with sand tailings or overburden and requires only "several inches of wetlands topsoils when available." Tellingly, Reclamation Guidelines divides aquatic systems into two categories: shallow (less than six feet deep) and deep. Shallow systems comprise swamps, marshes, sloughs, and ponds, but not streams. Nowhere does Reclamation Guidelines explicitly address the reclamation of streams. Comparing the soil-reclamation requirements that DEP has imposed on IMC in the CRP approval and ERP to the soil- reclamation specifications stated in BMR's Reclamation Guidelines, material discrepancies emerge as to the depth of sand tailings underlying four upland communities. If IMC transfers topsoil, sand live oak communities require at least six feet of sand tailings, not "several" feet; if IMC uses green manure, sand live oak communities require at least eight feet of sand tailings. Regardless whether topsoiled or green manured, xeric oak scrub communities require at least eight feet of sand tailings, not "several" feet. Regardless whether topsoiled or green manured, pine flatwoods and palmetto prairie require at least two feet of sand tailings, not 15 inches. There is a material discrepancy between the ERP and Reclamation Guidelines as to bay swamps. Reclamation Guidelines specifies one to three feet of organic muck for reclaimed Bay Swamps. ERP Specific Condition 14.b requires only "several inches of muck." Given the poor record reclaiming bay swamps, DEP, in forming this condition, is not relying on any experience-based knowledge that it has acquired, or, if it is, it did not add this information to the present record. There is no discrepancy as to wet prairies, but this is clearly due to a shortcoming in Reclamation Guidelines, at least as to non-fringe wet prairies. Under Reclamation Guidelines, wet prairies, at best, will continue to reclaim only as fringes, and only then if the edges of deeper wetlands have shallow slopes. Given the otherwise-uniform failure to reclaim extensive shallow wetlands, the actual soil regime at SP(2D) of four feet of sand tailings under four inches of topsoil must set the minimum soil criteria for wet prairie. 2. Geology and Soils For purposes of this Recommended Order, soils occur predominantly in the first two meters of the earth's surface. Below that depth, geologic characteristics predominate, so this Recommended Order refers to these deeper structures as geology. Post-reclamation, all of the soil and the top 45-50 feet of the geology are a product of IMC's reclamation activities. The post-reclamation geologic characteristics follow from the mining process, which deposits overburden within the mine cut in two locations. Most of the overburden is deposited in spoil piles within the cut. Some of the overburden is piled against the sides of the mine cut to reduce the seepage of water from the surrounding surficial aquifer into the cut. Both types of overburden are sometimes called "cast overburden." At OFG, prior to backfilling, the creation of cast overburden spoil piles will either leave alternating bands of sand tailings valleys and cast overburden spoil piles, each 330 feet wide, or each 165 feet wide; the record is not entirely clear on this point. The scenario with the greater hydrological impact is that each valley and the base of each spoil pile is 330 feet wide, but, even under this scenario, relatively little backfilled area would have less than five feet of sand tailings. If each sand tailings valley is 330 feet and each cast overburden spoil pile is also 330 feet at its base, the profile of each cast overburden spoil pile would appear to be a two- dimensional pyramid with its top cut off just below midpoint along its two slopes. The sides of the spoil piles of cast overburden are not perpendicular to the surface, but are sloped at about 1.5:1, according to Dr. Garlanger. Rounding off the depth of the mine cut to 50 feet, this 33-degree slope would travel 50 feet vertically at the point at which it had traveled 75 feet horizontally. Matching this slope with another on the other side of the spoil pile, 150 feet of the 330-foot wide overburden spoil pile would be consumed by the sloped sides, and 180 feet would be a plateau, at a constant elevation of 50 feet above the bottom of the mine pit. Adding 7.5 feet on either side of the plateau gains a depth of 5 feet, so the width of overburden under less than five feet of sand tailings would be 195 feet. Under the less-favorable scenario, for a 660-foot wide band of reclaimed geology, without regard to topsoil additions, the sand tailings, for the above-described 660-foot slice, will be at least 10 feet deep for a distance of 450 feet, or 68 percent of the reclaimed area, and will be at least 5 feet deep for a distance of 475 feet, or 72 percent of the reclaimed area. Adding the U-turns at the end of the rows would add only a little more area to the 28 percent of the reclaimed area with an overburden plateau within five feet of the surface. If the cast overburden spoil piles fill only half of each 330-foot wide cut, then the overburden plateaus would be much narrower. Each sand valley of 165 feet would abut a 33-degree slope that would again run 75 feet horizontal while climbing 50 feet vertical. Two of these slopes would consume 150 feet horizontal, leaving an overburden plateau of only 15 feet, leaving much less land with an overburden plateau within five feet of the surface. The shaping of the overburden that precedes the backfilling, the backfilling of sand tailings, and the transfer of topsoil are aided by substantial technological improvements in earthmoving equipment in recent years. Most importantly, earthmoving equipment has incorporated global positioning systems, so that they can now grade material to a tolerance of two centimeters, as compared to tolerances of six inches and one foot not long ago. This achievement permits the reclamation scientists to supervise backfilling more closely so as to replicate the design topography, which is a necessary, although not sufficient, condition of successful establishment of targeted hydroperiods and inundation levels. IMC soil scientist Joseph Schuster and Mr. Carter both presented detailed, well-documented testimony and are both competent soil scientists. They start from the same point, which is that pedogenesis, or soil formation, is a function of five factors: parent material, relief, climate, vegetation, and time. From there, they travel separate paths in their analysis and conclusions concerning the soil aspects of IMC's reclamation plan. In the successful reclamation of soils, Mr. Schuster highlights the creation of appropriate drainage characteristics, and Mr. Carter highlights the creation of appropriate soil horizons, although both experts acknowledge the importance of both these factors, and others, in soil formation and function. Their reasoning seemed mostly to be a question of differing emphases, although their conclusions were mutually exclusive. As already noted, the A horizon is the topsoil layer. (A mucky wetland may have an O horizon.) There is some variability among horizons--for example, the C horizon, which is described below, may occur immediately beneath the A horizon, especially in sandy material. But, for this part of Florida, typically, the E horizon forms under the A horizon. The E horizon is a leaching zone, through which rainwater transmits substances from the A horizon down to the B horizon, which is the accumulation zone beneath the E horizon. Florida typically has two types of B horizons: the Bh (or spodic) horizon, which is composed of loamy or spodic materials, and the Bt (or argyllic) horizon, which is composed of clayey materials. The spodic horizon is a mineral soil horizon containing aluminum and organic carbon, and possibly iron, which formed in a much colder climate, probably at least 10,000 years ago. Spodic horizons typically occur in the top two feet of the soil profile. Although spodic horizons may occur as deep as 40 feet, they occur at OFG within 20 inches of the surface, sometimes within only 10 inches. Beneath the B horizons is the C horizon, which is the parent material for pedogenesis. For the most part, Mr. Schuster's emphasis on reclaiming appropriate drainage is credited as the single most important factor in reclamation, and his seven drainage categories are ample for guiding the reclamation of the drainage characteristics of soils. More reclamation failures may necessitate the implementation of one of Mr. Carter's suggestions to carefully restore the soil horizons within the top two meters of the mine cut, as it is backfilled, or to use more clayey soils, such as those from drained CSAs, to add more nutrient-retaining capacity to the B and C horizons than nutrient-poor sand tailings provide. Mr. Carter's soil cores from reclamation sites, which reveal overburden close to the surface, presented stark contrasts to soil cores of native soils in the area, although drainage concerns outweigh pedogenic concerns. Mr. Carter correctly points out that, from a soils perspective, pre-mining overburden is not post-reclamation overburden. From a mining perspective, what lies above the unmined phosphate ore is overburden, and what lies in the ground, post-reclamation, is also overburden, which, to a certain depth, is dominated by characteristics of the B horizon and underlying C horizon. However, in a 52-foot deep phosphate mine, as opposed to typical road construction, which Mr. Schuster unpersuasively offered as a comparable, the overburden is ultimately dominated by geologic material from below the C horizon. From a soils perspective, what lies in the unmined ground are soil horizons that took many years to form, and what lies in the ground, post- reclamation, is nothing but an admixture of former soil horizons and geologic material that normally resides a little deeper in the earth's crust. As Mr. Carter notes, the result, post- reclamation, is less like soil and more like unconsolidated soil material with little horizonization even several years after reclamation, and, if an overburden layer is present close to the surface, it typically is tightly compacted. Soil horizons are not an incidental or random characteristic of undisturbed soils; soil horizons are an important component in the formation and functioning of soil. Mr. Schuster himself disclaims reliance upon overburden epipedons--which are organically influenced horizons typically above the B horizon--in the restoration of native ecosystems, although he does not object to the presence of such epipedons in agricultural restoration. If sand were displaced by overburden in the area of the E horizon, the E horizon will be unable to contribute to the formation of the B horizon, as it must, especially after the comprehensive disturbance of all soil horizons contemplated at OFG. Mr. Schuster's disclaimer bodes ill for the ERP provisions allowing overburden as an alternative to sand tailings for forested and herbaceous wetlands. However, Mr. Schuster's disdain for cast overburden near the surface is well-founded. His emphasis on drainage over soil horizons, including even overburden epipedons, may find support at Dogleg, which, according to the CDA, suffered the loss of its 12-inch topsoil layer due to oxidization and was left with overburden of a "clayey sand" texture that may have been more permeable than typical, less permeable overburden. This loss appears to have taken place over sufficient time that other conditions may have commenced to form an A horizon. However, when adjacent mining ended and the water table re-established itself, the reclaimed trees began to survive. Mr. Schuster accounts for the importance of pedogenesis, in addition to drainage characteristics, by identifying the topsoil/green manure, sand, and overburden as analogs of soil horizons. Certainly, the topsoil/green manure is a functional analog, and its thickness is not much of a variable. Sand tailings provide an appropriate texture for an A horizon. But the variability of the depths of sand tailings limits the force of Mr. Schuster's argument for functional analogs. For all wetland communities, overburden may occur at depths of only several inches, and, for pine flatwoods and palmetto prairies, overburden may occur at depths of 15 inches. Or sand tailings may be over 50 feet deep, atop a clay confining layer, not overburden. Setting aside the problem with the variability of depths of sand tailings, it is possible to treat sand tailings as a functional E horizon, through which materials will leach from the A horizon and into the B horizon, which is the zone of accumulation. However difficult it may be to cast the sand tailings in the role of a B horizon, it is impossible to cast them in the role of a C horizon. Ignoring the considerable amount of geologic material contained in cast overburden and possible textural issues, Mr. Schuster plausibly offers overburden as good B and C horizon material because of its higher clay or spodic content. Thus, the apparent impairment of pedogenesis may not be as extensive as first appears, provided overburden remains below the A and E horizons. Still, mining and reclamation, at least as designed for OFG, mean the loss of some soil functions for extensive periods of time, but proper reclamation of drainage characteristics and hydrology sufficiently mitigate these losses of function. Even Mr. Schuster's emphasis on drainage is not unconditional, as he relies on the application of topsoil or the implementation of a green-manure process to provide an immediate A horizon and accelerate the process by which the A horizon continues to form. Endorsed by Mr. Carter as a good idea to increase organic material and loosen the structure of the topsoil, green manure is the process by which a quick-growing cover crop is planted on the finished surface, post-reclamation. The crop is then disked into the soil to provide a quick infusion of nitrogen and organic matter. This approach has not previously been used in reclamation following phosphate mining, but it has been used in other applications and is effective. Post-reclamation, fire too will pump nutrients into the A horizon. Herbaceous wetlands, with their shallower roots, ought to be adequately served by Mr. Schuster's focus on the drainage characteristics of reclaimed soils. Forested wetlands present a different challenge due to their deeper root systems. Past reclamation of forested wetlands has experienced tree loss after several years of growth, possibly indicative of a problem with root development beyond a certain depth. Perhaps the roots cannot penetrate the overburden or cannot find the necessary nourishment, after penetrating the overburden; however, it is at least as likely, given the record of reclamation, that the mitigation site suffered from a poorly reclaimed water table, so that, for example, the water table was too high for too long, perched, or even too low for too long. Given the repeated problems with establishing appropriate water tables, post-reclamation, this factor looms as a likely explanation for tree die-off. However, Mr. Schuster's emphasis on drainage characteristics over pedogenic conditions carries more weight as to herbaceous wetlands and xeric habitats, where sandy soils predominate to relative great depths, and somewhat less weight as to forested wetlands. Mr. Schuster's emphasis on drainage over pedogenesis carries even less weight as to pine flatwoods and palmetto prairies, which are less tolerant to the disturbance of the spodic horizon in reclaimed soils. Obviously, overburden presents different textures and drainage characteristics than do native flatwoods soils. However, pine flatwoods and palmetto prairies are more dependent upon higher water tables than more xeric upland communities, so, again, past problems in reclaiming these upland communities again likely involve the failure to create an appropriate water table, post-reclamation. Differences between Mr. Schuster and Mr. Carter were harder to reconcile regarding the role of pH in soil. Mr. Schuster and Mr. Carter reached different results in field tests of soil pH. However, Mr. Schuster's testimony is credited that most ecosystems tolerate a wide range of pH, and the most important soil characteristic remains its drainage characteristics. Hydrology Introduction Removing and replacing the topography, soils, and geology, including the surficial aquifer, to a depth of 52 feet, under nearly 3500 acres of land necessitates hydrological analysis. Hydrological analysis is necessary to support three sets of projections: the streamflows of Horse Creek, downstream of OFG, during mining and after reclamation; hydroperiods and inundation depths of reclaimed wetlands, as the wetlands created in the reclaimed topography and soils fill and empty with water based on inputs and outputs from runoff and groundwater, inputs from rainfall, and outputs from evapotranspiration; and peak discharges from OFG, during mining and after reclamation. All hydrological analysis must account for the water budget, which balances the inputs and outputs of water. The elements of the water budget are rainfall, runoff, percolation (or infiltration), evapotranspiration, deep recharge (the recharge of the deeper aquifers), and groundwater outflow. Rainfall is the most important factor because it is the sole means by which water enters the system. Equal to the total of the outputs, annual rainfall is a large number, typically measuring in this part of Florida in excess of 50 inches. Rainfall is also a variable number in two respects. It varies from year to year. For the Peace River basin, annual rainfall from 1933 to 2002 has ranged from 35.89 inches to 74.5 inches with an average of 52.4 inches. However, rainfall in the Peace River basin has varied over eras. From 1933 to 1962, average annual rainfall was 55.48 inches. From 1962 to 2002, average annual rainfall was 51.02 inches. For the Peace River basin, the average annual rainfall has decreased about 4 1/2 inches in the past four decades when compared to the preceding three decades. Especially over shorter time intervals, rainfall also varies considerably from location to location within a relatively small area. Subject to these variabilities, especially the distance of the rainfall gauge to the location for which the water budget is constructed, rainfall is easily measured by rainfall gauges. Measurement means straightforward collection of data without elaborate modeling, calculation, or simulation. After rainfall, the most important element in the water budget is evapotranspiration, which is the combined effect of evaporation of water from soil, plant surfaces, wetlands, and open water and transpiration of water through vegetative processes. In this part of Florida, evapotranspiration releases about 75 percent of the rainfall back into the atmosphere, which, by convention, counts as a loss to the system. Unlike rainfall, evapotranspiration typically cannot be measured, except that the maximum evaporation, which is a pan containing water in the direct sun, is subject to direct measurement. Hydrologists have measured evapotranspiration from irrigated golf courses at 58-62 inches annually, and Dr. Garlanger has measured evapotranspiration from reclaimed CSAs at 39-41 inches annually, although both of these measurements may have been somewhat indirect. However, hydrologists widely recognize ranges of evapotranspiration for this part of Florida for different land uses. Annual rates of evapotranspiration for open water is 49-1 inches, for riparian wetlands is 47-49 inches, and for isolated wetlands is 43-44 inches. The annual evapotranspiration for pine flatwoods is 37-39 inches and for xeric uplands is 34-36 inches. Impervious surface, such as pavement or a roof, produces only 8-10 inches annually--absent weeds, all evaporation. In addition to land use, the amount of water available controls the amount of evapotranspiration. Elevations of the water table will affect evapotranspiration. Thus, hydrologists often measure potential and actual evapotranspiration. Anthropogenic impacts may increase or decrease evapotranspiration. Net additions of impervious surface, such as parking lots, roads, and rooftops, increase runoff and decrease evapotranspiration. Net additions of open water, such as lakes, ponds, and streams, decrease runoff and increase evapotranspiration. At the other end of the spectrum, deep recharge removes very little water at OFG. Even during mining, when the impacts would be greatest due to high withdrawals, the increase to deep recharge is 30-60 gallons per minute--insignificant as compared to the average recharge rate in the Peace River basin of 190,000 gallons per minute. In fact, according to RAI-192 in the CDA, rainfall, not deepwell water, is the primary source of water for the mine recirculation system. Deep recharge is typically one inch annually, although Charlotte County hydrologist Phillip Davis, in one of his scenarios, claimed that 2.5 inches of water annually would enter the intermediate aquifer from the surficial aquifer. This range of values for deep recharge is within the specified ranges for most types of evapotranspiration. Deep recharge cannot be directly measured. The record does not suggest much variability in deep recharge, which is controlled by the elevation of the water table and potentiometric surface of the Florida Aquifer, in undisturbed geologic systems in this part of Florida. Although the replacement of part of the confining layer between the surficial and intermediate aquifers could affect deep recharge, the potential impact at OFG appears to be very small due to the permeability of the matrix layer and impermeability of the clay bed beneath it. However, historic anthropogenic disturbances may have increased deep recharge. All groundwater withdrawals induce recharge, at least of the surficial aquifer. Withdrawals from the deeper aquifers, such as those taken by the phosphate mining industry prior to expanded recycling, could have caused increased rates of deep recharge, depending on the confining layers above the Floridan Aquifer within the area influenced by the withdrawals. To the extent that the effect of these deep withdrawals extended to the surficial aquifer, evapotranspiration and streamflow would have been reduced. Groundwater outflow has been measured in this area by Bill Lewelling of the U.S. Geologic Service. (Mr. Lewelling seems to have measured groundwater outflow indirectly by measuring chloride concentrations at different locations.) He found a range of 1.7-17.9 inches annually with an average of 9.2 inches annually. An important component of groundwater outflow, infiltration depends on soil type and antecedent saturation, so it is variable in terms of location and climate. However, it appears to vary within a relatively narrow range at OFG, pre- mining. One combination of water-budget elements that may be measured easily is streamflow, which, as noted above, is a combination of the runoff and groundwater outflow reaching the stream. Streamflow equals rainfall minus evapotranspiration minus deep recharge minus the change in uplands storage. For the purposes of Dr. Garlanger's analysis, uplands are everything, including wetlands, above riparian wetlands, and riparian wetlands are the area adjacent to a stream channel that remain perennially wet and are typically within the 25-year floodplain. Streamflow is not variable like rainfall as to location because the river or stream is fixed and so is the location of the gauge, but streamflow is highly variable as to volume, even from year to year. For Horse Creek at State Road 64, for example, annual streamflow from 1977 to 2001 has averaged 9.7 inches, but has ranged from one inch to 17 inches. For the Peace River at Arcadia, annual streamflow from 1950-1962 was 13.25 inches or 1334 cfs. From 1963 to 2002, average streamflow at the same location was 8.78 inches or 884 cfs. The SWFWMD has not yet set minimum flows and levels for the Peace River, but is presently in the process of setting these values. In these cases, streamflow is most often calculated to compare a model's output in streamflow to measured values for the same period of time, to determine streamflow for locations without a streamflow gauge, or to determine streamflow for locations with a streamflow gauge, but after changes in land use, such as the construction of a ditch and berm system or post-mining reclamation. Another combination of water-budget elements that can be measured, although with more difficulty than streamflow, is the water table. Most water table data are fairly recent, dating from the early 1990s. Mr. Davis testified that the water table data available for OFG were the most limited that he had ever encountered. Varying daily, the water table is the top of the surficial aquifer. The elevation of a non-perched water table, at any given time, is ultimately driven by all of the elements of the water budget, but is immediately reflective of surficial aquifer inputs and outputs and hydraulic conductivity. Hydraulic conductivity is the ability of a porous medium to transmit a specific fluid under a unit hydraulic gradient, so it is highly dependent on the physical properties of the medium through which the fluid is transmitted. Although hydraulic conductivity exists in the horizontal and vertical planes, this Recommended Order considers only horizontal hydraulic conductivity. Hydraulic conductivity is an important hydrological factor that can be measured, at least horizontally, although with difficulty. Hydraulic conductivity varies by location due to the variations in permeability of the geological structure through which the groundwater is passing. The hydraulic conductivity of sand tailings is about 38 feet per day, and the hydraulic conductivity of cast overburden is about one foot per day. Native soils are typically somewhere in between these two extremes. In one area, the matrix, pre-mining, had a permeability of 5-15 feet per day. IMC's assurances concerning streamflow, wetlands hydroperiod and inundation depths, and peak discharges must be assessed against three different backdrops. At one extreme, at least based on the present record, phosphate mining and reclamation, as distinguished from other phases of phosphate processing, have not caused adverse flooding; the sole example of flooding from a failed ditch and berm system--designed to meet more relaxed standards--occurred at the Kingsford Mine on January 1, 2003, and no serious environmental damage occurred. At the other extreme, reclamation after phosphate mining has routinely failed to reclaim targeted hydroperiods and inundation depths for shallower wetlands and many forested wetlands. In between these two extremes, although closer, at least recently, to the industry's flooding experience, is streamflow. Historic impacts to the Peace River are considered below, but an example of the minimal impact on streamflow of recent mining is found in the last 15 years' mining of the upper reaches Horse Creek. During this period, the streamflow of Horse Creek at State Road 64 has remained unchanged. The record does not support Mr. Davis's suggestion that high volumes of groundwater pumping and high volumes of NPDES discharges artificially added streamflow during this period. Resolution of the hydrological evidence in these cases requires close examination of the testimony of Dr. Garlanger, who addressed all three areas for IMC; Mr. Davis, who addressed streamflow and wetland hydroperiods and inundation depths for Charlotte County; and Mr. Loper, who addressed peak discharges for Charlotte County. All three of these witnesses are highly competent and patiently and thoroughly explained their hydrological analyses. Mr. Loper proved adept at finding flaws in IMC's analyses of peak discharges. Dr. Garlanger and his staff several times refined their work, even during the hearing, to incorporate Mr. Loper's findings. Differences remained between Mr. Loper and Dr. Garlanger, and, although it is possible that Mr. Loper is correct on these remaining points, Dr. Garlanger successfully discounted the importance of Mr. Loper's objections in projecting peak discharges. Examining the evidence in the backdrop of a record almost devoid of failures that have resulted in flooding, it proved impossible not to credit Dr. Garlanger's assurances about peak discharges. Mr. Davis was less successful in finding flaws in IMC's analysis of streamflow, or at least in finding material flaws. As detailed below, his theory attributing to phosphate mining a greater share of historic reductions in the streamflow of the Peace River seems less likely than Dr. Garlanger's theory attributing a lesser share of these historic reductions to phosphate mining. Mr. Davis substituted an integrated simulation model for Dr. Garlanger's uplands model and spreadsheet. The advantages of Mr. Davis's model emerged to a greater extent in simulating wetlands hydroperiods and inundation depths, not in simulating streamflows. This is discussed in detail below. The conflict between Mr. Davis and Dr. Garlanger over the ability to reclaim targeted hydroperiods and inundation depths has proved very difficult to resolve. Dr. Garlanger has vast experience in the phosphate mining industry and thus a clear advantage in projecting, as he has since 1974 at several hundreds of projects, peak discharges and streamflow. But this experience is no advantage as to projecting wetland hydroperiods and inundation depths. Dr. Garlanger did not state that he has projected hydroperiods and inundation depths for 30 years at several hundreds of projects. If he has done so, he has contributed to the numerous failures, described above, of reclaiming shallow wetlands. More likely, the phosphate mining industry has infrequently targeted shallow wetlands for reclamation, so Dr. Garlanger does not have extensive experience in creating the necessary hydroperiods and inundation depths for shallow wetlands. The reclamation of specific hydroperiods and inundation depths for shallow wetlands is likely a fairly recent development, perhaps due to the relaxed restoration expectations of earlier eras or the inability of earthmoving equipment to execute fine specifications in finished topography. In the CDA discussion of Bay Swamp, noted above, the author admits that reclamation historically has not attempted to reclaim the kind of interface necessary between shallow wetlands and the water table to support bay swamps. The parties' understandable, but unrealistic, pursuit of findings that all previous shallow-wetland reclamations of any size have failed or succeeded may have discouraged testimony candidly analyzing what hydrologists have learned from the limited successes and the many failures. Especially unfortunate is the omission of any discussion of the success of Dogleg, where, according to the CDA material, persistent replanting of trees over many years in soils with prominent, but perhaps atypically permeable, cast overburden profiles eventually succeeded, after the completion of nearby mining allowed the water table to reestablish itself. The record does not even indicate if Dogleg mining took place behind a ditch and berm system, nor does it adequately describe the texture of the overburden on which the topsoil rested. In addition to different levels of confidence attaching to the demonstrated ability of the phosphate mining industry to avoid adverse flooding and significant reductions in streamflow, on the one hand, and the routine inability of the phosphate mining industry to re-create the hydroperiods and inundation depths required for shallow wetlands, another point of differentiation exists between Dr. Garlanger's streamflow projections and his hydroperiod and inundation depth projections. Although he uses the same uplands model and similar wetlands models for both tasks, certain characteristics of his relatively simple modeling do not work as well in projecting hydroperiods and inundation depths as they do in projecting streamflows. Accurate projections of streamflow, at a discrete point downstream of the 4197 acres constituting OFG, are amenable to averaging, smoothing out input values, and substituting assumed values for calculated values. Accurate projections of hydroperiods and inundation depths require precise analysis of reclaimed wetlands--few over 10 acres, most less than a couple of acres--distributed over the 3477 acres of OFG to be mined. For each wetland, precision means daily accuracy to within a few inches of elevation of topography and water table and no more than a few feet of hydraulic conductivity. Streamflow projections, which have worked in the recent past, will continue to work, whether each projection within an area is accurate or any errors within an analyzed area offset errors in other areas, so that, notwithstanding flow discharge curves, small discrepancies in projected streamflow average out over longer periods of time. Hydroperiod and inundation depth projections, which may have been attempted, if at all, only rarely in the past, must be accurate over very small areas for very specific time intervals. Also, streamflow projections are less sensitive to misallocations between runoff and groundwater flow than are projections of shallow wetland hydroperiod and inundation depth. The record suggests that reclaiming short wetland hydroperiods and shallow inundation depths places new and more difficult demands upon the phosphate mining industry and its reclamation scientists. Although long accustomed to producing projects that did not flood and at least recently accustomed to producing projects that did not reduce streamflow, the phosphate mining industry and its reclamation scientists are only now acclimating to newer regulatory expectations that they produce projects that reliably reclaim shallow wetlands by re-creating functional relationships between these wetland systems and surface runoff and groundwater flow. Streamflow Streamflow in Horse Creek downstream of OFG and the Peace River is reduced during mining because the ditch and berm system captures all of the runoff, at least up to the capacity of the ditch and berm system. The ditch and berm system is designed to handle the 25-year, 24-hour storm event, although additional, unspecified freeboard is built into the system. The capacity of the ditch and berm system may be exceeded by more intense storms or perhaps even lesser storms, unless the 25-year storm design accounts for antecedent water levels, which may be higher in systems with recharge wells than in systems without the recharge wells. In any event in which the capacity of the ditch and berm system is exceeded, IMC pumps the water through the mine recirculation system and releases it through one of two NPDES outfalls upstream at Horse Creek. Because the ditch and berm system captures all of the runoff, under normal conditions, the reduction in streamflow after reclamation is generally less than the reduction in streamflow during mining. The removal of the ditch and berm system allows runoff again to contribute to streamflow. To analyze the impacts upon streamflow, Dr. Garlanger first performed a simplified water budget analysis at three locations: Horse Creek at State Road 72 (near Arcadia), the Peace River at Ft. Ogden (where the Authority withdraws its raw water--downstream of the confluence of Horse Creek and the Peace River), and the point at which the Peace River empties into Charlotte Harbor. Although Dr. Garlanger used uplands exclusively for this simplified exercise in constructing a conceptual water budget, adding the riparian wetlands would not substantially change the result because the wetlands runoff and evapotranspiration would be higher, but the wetlands groundwater outflow would be lower. Either way, Dr. Garlanger's analysis, which is sometimes called an analytic model, was merely a prelude to more sophisticated modeling. For his during-mining analysis, Dr. Garlanger assumed that the ditch and berm system would capture all the runoff from the 5.4 square miles of the Horse Creek sub-basin behind the ditch and berm system. In sequential mining, the ditch and berm system would not capture all of the 5.4 square miles at once. But, assuming the worst-case scenario, Dr. Garlanger assumed the capture of the runoff from entire sub-basin for a period of 25 years. Initially, Dr. Garlanger also assumed that the ditch and berm system would likewise not release any base flow. This is an unrealistic scenario because, as noted above, one of the two purposes of the ditch and berm system is to permit base flow into wetlands and streams. Later, Dr. Garlanger alternatively assumed that the ditch and berm system would release all of the base flow. If the ditch and berm system is equipped with recharge wells, it is reasonable to expect that the system will release all of the base flow. Calculating that the Horse Creek sub-basin upstream of State Road 64 is 39.5 square miles, Dr. Garlanger divided the average streamflow of 29.1 cfs at State Road 64 by the area of the sub-basin and determined that each square mile contributed 0.74 cfs of streamflow. Multiplying this number by the 5.4 miles captured by the ditch and berm system, Dr. Garlanger determined that, during mining, the ditch and berm system would reduce streamflow by 4 cfs, if it removed all base flow (and runoff). This very worst-case scenario would generate the following reductions in streamflow: in Horse Creek at State Road 72, 2.3 percent; in the Peace River at Ft. Ogden, 0.3 percent; and in the Peace River at Charlotte Harbor, 0.2 percent. Dr. Garlanger then calculated the reduction in streamflow in the probable scenario in which the ditch and berm system, with recharge wells, operates properly and releases the base flow, while still retaining all the runoff. Relying principally upon Mr. Lewelling's report on groundwater outflow in various locations within the Horse Creek sub-basin, Dr. Garlanger calculated that the capture rate would decrease from 0.74 cfs per square mile to 0.28 cfs per square mile. Applying a capture rate of 0.28 cfs per square mile times 5.4 miles, the reduction in streamflow, during mining, is more realistically 1.5 cfs. This means that, under the simplified analytic model, the ditch and berm system would reduce streamflow in Horse Creek at State Road 72 by less than one percent, in the Peace River at Ft. Ogden by .13 percent, and in the Peace River at Charlotte Harbor by .09 percent. These figures would represent the same reduction in streamflow caused by a decrease in average annual rainfall of 0.01 inches. Although, as discussed below, Dr. Garlanger also undertook more sophisticated modeling of streamflow during mining, this is a good point at which to address three of Mr. Davis's objections to Dr. Garlanger's during-mining analysis because these objections are more conceptual in nature and are not directed to Dr. Garlanger's model. Mr. Davis contended that the unmined wetlands would become dehydrated because: 1) the ditch and berm system would deprive them of surface flow or runoff from the areas behind the ditch and berm system; 2) the ditch and berm system would deprive them of adequate base flow or groundwater; and 3) water in the ditch would be lost to evapotranspiration. These objections are more applicable to a ditch and berm system without recharge wells. If the only source of water to rehydrate the wetlands is the groundwater running into the mine and rainfall directly on the area behind the berm, the loss of runoff into the area behind the berm and the loss of water to increased evaporation would require additional analysis to assure that adequate water remained to recharge the downstream wetlands through groundwater inputs. However, the recharge wells add additional water, probably from the deeper aquifers, so that adequate water can be supplied the downstream wetlands through groundwater inputs. To the extent that intercepted surface flow reduces water levels in the unmined wetlands, IMC can offset this loss by pumping more water into the ditch and increasing groundwater inputs into these wetlands. Mr. Davis's additional objection about additional evapotranspiration from the riparian wetlands assumes the condition that he claims will not occur--adequate hydration of the riparian wetlands--so it is impossible to credit this concern. Dr. Garlanger next analyzed streamflow by applying a simulation model. More sophisticated than the analytic model discussed in the preceding paragraphs, the uplands portion of this modeling also aided Dr. Garlanger's analysis of the hydroperiods and inundation depths of the wetlands in the no- mine area and the reclaimed wetlands, which are discussed in the next subsection. Dr. Garlanger's simulation model calculates site-specific groundwater outflows based on day-to-day hydrological conditions. Unlike the analytic model, which examined the effect on streamflow only during mining, the simulation model determines streamflow contributions from OFG without any mining disturbance for a 25-year period into the future, during mining, and after reclamation for the same 25- year period used in the no-mining analysis. The modeling proceeded in two stages. First, Dr. Garlanger modeled uplands. Then, inserting the groundwater and runoff outputs from the uplands model into a streamflow model, Dr. Garlanger modeled the riparian system to determine its contributions to streamflow at a point just downstream of OFG. Thus, rainfall is the only addition of water into the uplands system, but rainfall, groundwater outflow from the uplands into the riparian wetlands, and runoff from the uplands into the riparian wetlands are the additions of water into the riparian system. The uplands model is the Hydrological Evaluation of Landfill Performance (HELP) model. Developed for use in analyzing groundwater movement in landfills, HELP generally calculates groundwater outflow based on the hydraulic conductivity of the surficial aquifer divided by the square of the distance from the riparian wetland to the basin divide. In 2001, Dr. Garlanger modified the HELP model (HELPm). The modification multiplies the output from HELP by the square of the maximum height of the water table above the confining layer at the basin divide minus the square of the minimum height of the water table above the confining layer at the riparian wetlands. The only variable in HELPm is the maximum height of the water table above the confining layer; all other values, including those set forth above for HELP, are fixed. The modification improved the HELP model by allowing Dr. Garlanger, among other things, to reduce the extent to which the model is constrained by enabling him to input more realistic hydraulic conductivities. Using HELP, unmodified, Dr. Garlanger had had to input unrealistically high values for hydraulic conductivity. Hydraulic conductivity is either measured in the field or assumed. To simulate OFG without any mining for 25 years into the future, Dr. Garlanger had to obtain an input for hydraulic conductivity. Based on collected data from near the Panhandle as to daily fluctuations in the water table over a two-year period and sub-surface soil composition, as well as other information, Dr. Garlanger determined an average weighted hydraulic conductivity for OFG, pre-mining, of 19 feet per day with a low of 10 feet per day. Dr. Garlanger settled on an initial average weighted hydraulic conductivity of 15 feet per day for the surficial aquifer, but also identified a low-end average of 10 feet per day. As noted above, the contribution of an area of land to streamflow is dependent upon rainfall, evapotranspiration, deep recharge, and the change in storage, which is driven by the elevation of the water table (i.e., the top of the surficial aquifer) as it changes from day to day. Focusing on the vertical components of the water budget, HELPm calculates daily changes in storage, based on water table levels, so as to permit projections of runoff and groundwater outflow from the uplands. For rainfall, Dr. Garlanger relied upon the records of the Wauchula gauge, which is about 10 miles northeast from OFG. Rainfall data for this gauge go back to 1933, although to supplement some missing months, Dr. Garlanger relied on the Ft. Green gauge, which is closer to OFG, but does not go as far back as the Wauchula gauge. To supplement this information on the volume of rainfall, Dr. Garlanger added inputs on the frequency and rate of rainfall. For this calculation, Dr. Garlanger only used rainfall data for the period from 1978 to 2002 because the U.S. Geologic Service has collected streamflow data for Horse Creek at State Road 64 only as far back as 1978. Similar streamflow data for Horse Creek downstream at State Road 72 and for the Peace River go further back. Dr. Garlanger selected this timeframe so he could compare the model output of predicted streamflow to actual streamflow. HELPm calculates evapotranspiration, typically the largest source of water loss, on a daily basis. Dr. Garlanger calibrated evapotranspiration in his simulation by comparing HELPm calculations against average annual values for evapotranspiration for riparian wetlands, uplands, and wetlands in uplands, so as to permit the calculation of an average value of evapotranspiration for the Horse Creek basin above State Road Calibration is the process by which a hydrologist modifies the data inputs to the model based on measured data in order to produce a better match between observed and predicted data. Using generally accepted evapotranspiration values and the standard water-budget formula, Dr. Garlanger calculated average annual evapotranspiration for the Horse Creek basin above State Road 64 of 40.3 inches. He determined the following annual average evapotranspiration rates: riparian wetlands-- 47.5 inches; depressional wetlands--44 inches; seepage wetlands- -47.5 inches; well-drained uplands--34.5 inches; and other uplands--39 inches. Using this information, Dr. Garlanger then found the appropriate average annual evapotranspiration for the OFG uplands that he was modeling, and he reran the model five or six times until it produced outputs for uplands evapotranspiration consistent with this value. For uplands runoff, Dr. Garlanger turned to a well- recognized methodology for estimating the storage available in the uppermost foot of soil, as infiltration is an important factor in determining runoff. For groundwater outflow, Dr. Garlanger uses the one available equation, which is derived from Darcy's Law. Dr. Garlanger then ran his model for the no-mining, during-mining, and after-reclamation options, and he validated the model. In validation, the hydrologist confirms the model's outputs to measured data. In these exercises, Dr. Garlanger compared the predicted groundwater outflows with the empirical values published by Mr. Lewelling and predicted groundwater levels with those measured by IMC near the Panhandle. Dr. Garlanger ran the model with hydraulic conductivities of 10-15 feet per day and drainage times of 5-12 days. He eventually settled on an average hydraulic conductivity of 10 feet per day and an average drainage time of 12 days. Using these values, Dr. Garlanger validated his output by projecting streamflow from the entire 39.5-square mile area upstream of State Road 64, for which data exist. He found that the model produced a reasonable prediction of the flow duration curve. Dr. Garlanger then validated the output by comparing predicted and measured cumulative streamflow from 1978 through 1987, during which time mining in the Horse Creek basin was insignificant. He found a very good matchup between actual data and his model's predictions. Validating the output for average daily and average annual streamflow against actual data, Dr. Garlanger again found that the model performed acceptably. Dr. Garlanger then was prepared to model the 5.4 square-mile area for impact on Horse Creek streamflow at State Road 64 for 25 years without mining, during mining, and for 25 years after reclamation. For during-mining conditions, Dr. Garlanger assumed that the ditch and berm system would capture all of the runoff and none of the groundwater. For post-reclamation conditions, Dr. Garlanger assumed that the cast overburden spoil piles would be parallel to the flow of groundwater or, where that is not practicable, that the top of the spoil piles would be shaved by progressive amounts, ranging from five feet at the groundwater (or basin) divide progressively to 15 feet at the riparian wetland. This is vital to his calculations because of the vast difference in hydraulic conductivity of cast overburden spoil piles as compared to sand tailings. When oriented perpendicular to groundwater flow and unshaved, these spoil piles would act as underground dams, blocking the flow of groundwater. Dr. Garlanger modeled streamflow, in Horse Creek at State Road 64, which is just downstream of the confluence of Horse Creek and West Fork Horse Creek, under two scenarios: hydraulic conductivity of ten feet per day and drainage time of 12 days and hydraulic conductivity of fifteen feet per day and drainage time of five days. For post-reclamation hydraulic conductivity, Dr. Garlanger used 12 feet per day. With the higher streamflow reductions resulting from the lower hydraulic conductivities, Dr. Garlanger projected streamflow reductions, during mining, from 1.07-2.41 cfs and, after reclamation, from 0.10-0.14 cfs. These are average annual values. Generating a flow duration curve for Horse Creek at State Road 64 and using the more adverse data from the lower hydraulic conductivity value, Dr. Garlanger found a slight decrease, during mining, in flow during low-flow conditions, reflecting the mining of the Panhandle tributaries that contributed to groundwater outflow. Generating a stage duration curve, to depict the elevation of the water in the stream during the low-flow condition, Dr. Garlanger demonstrated that the difference is about three inches. After reclamation, as compared to pre-mining conditions, Dr. Garlanger determined that the average flow is decreased by 0.1 cfs, probably due to increased evapotranspiration from the additional reclaimed wetlands. This generates no discernible difference in the two flow duration curves for Horse Creek at State Road 64. Dr. Garlanger thus reasonably concluded that mining would not adversely affect the flow of Horse Creek at State Road 64 or dehydrate wetlands in the no-mine area. He concluded that, after reclamation, the impact would be de minimis as a decrease of 0.1 cfs is beyond the ability to measure flows. Farther downstream, at State Road 72, which is downstream of the confluence of Brushy Creek and Horse Creek, Dr. Garlanger calculated projected streamflow reductions, during mining, from 1.2-2.8 cfs and, after reclamation, from 0.12-0.16 cfs, which are too small to measure. Likewise, there are no discernible differences in the flow duration curves at State Road 72. Downstream of the confluence of Horse Creek and the Peace River, at Ft. Ogden, Dr. Garlanger calculated that the reduction in streamflow caused by mining at OFG would be equivalent to the reduction caused by a decrease of 0.01 inches of rainfall in the Peace River basin. Mr. Davis voiced many objections to Dr. Garlanger's streamflow calculations based on his reliance on HELPm. These objections are addressed at the end of the next section. Mr. Davis also voiced objections to Dr. Garlanger's calculations based on his understatement of the impact of phosphate mining on streamflow. As already noted, Dr. Garlanger made the better case on this issue. Distinguishing between the two rainfall eras in the Peace River basin--1933-1962 and 1969-1998--Dr. Garlanger reported that the measured average streamflow of the Peace River in the latter era was about 4.33 inches lower than the average streamflow of the Peace River in the former era. Finding that decreased average rainfall reduced streamflow by 3.75 inches per year, Dr. Garlanger calculates that the remaining 0.58 inches per year reduction in streamflow was largely due to an increase in deep recharge from 3.37 inches annually in the earlier era to 6.3 inches annually in the latter era. Anthropogenic changes in the Peace River basin have had opposing effects on streamflow. Urbanization, which causes increases in impervious surface, have increased runoff at the expense of evapotranspiration, thus increasing streamflow-- although certain demands of urbanization, such as groundwater pumping for potable water and industrial uses, will increase deep recharge, thus decreasing streamflow. Groundwater withdrawals by agriculture, industrial, utilities, and phosphate mining, net of the returns of these waters, have increased deep recharge, which, as just noted, decreases streamflow. Historically, phosphate mining's profligate use of deep groundwater also released much of the water back to streamflow, although the industry's historic predilection for Land-and-Lakes reclamation increased evapotranspiration and thus reduced streamflow. Converting inches of streamflow to cfs, Dr. Garlanger makes a good case that the streamflow of the Peace River is down about 500 cfs, mostly due to reduced rainfall amounts. About 50 cfs of that reduction is due to anthropogenic effects, and 5-15 cfs of man-caused reductions in the streamflow of the Peace River are due to phosphate mining. By contrast, Mr. Davis unconvincingly attributed a three-inch reduction in streamflow at the South Prong Alafia River to phosphate mining. This reduction in streamflow may be explained by Mr. Davis's failure to apply a lower and more reasonable streamflow assumption, absent mining; a lower and more likely rainfall amount; and a higher and more likely evapotranspiration rate. Wetland Hydroperiods and Inundation Depths 694. In making his groundwater calculations, Dr. Garlanger attempted to predict the behavior of the surficial aquifer, post-reclamation, and the ability of runoff and the water table to support the hydroperiods and inundation depths of the wetlands in the no-mine area and reclaimed wetlands. For this phase of his hydrological work, Dr. Garlanger again used the HELPm for the uplands and a long-term simulation model for the depressional wetlands in the uplands. The long-term simulation model is very similar to the streamflow model used for the riparian-wetland component of the streamflow modeling. Notwithstanding the replacement of the present geology with its more limited vertical permeability with wide bands of sand tailings down to the clay confining layer, Dr. Garlanger believes that deep recharge will remain unchanged by mining and reclamation because groundwater levels will return to their pre-mining elevations. To analyze the ability of the post-reclamation water table to support the reclaimed wetlands, Dr. Garlanger took 12 wetland cross-sections and projected fluctuations in water table and hydroperiod. These are presumably the 13 wetland complexes identified in Figure 13-3, described above. Dr. Garlanger testified about one modeled reclaimed wetland in detail--a freshwater marsh fringed by a wet prairie. This is E046/E047, which is a combined 16.1-acre wetland that is upgradient from E048, which is six-acre mixed wetland hardwoods that will replace the east half of a bay swamp (G166) and mixed wetland hardwoods fringes (G166B and G166C). Dr. Garlanger performs an iterative process based on a post-reclamation topographic map that starts with substantially pre-mining topography. Identifying the HELPm inputs, Dr. Garlanger takes the length of the upland to the riparian system and the assumed hydraulic conductivity based on the relative depths of sand tailings and cast overburden, and he then runs HELPm to determine the daily upland runoff and groundwater outflow. Dr. Garlanger then calculates the maximum height of the water table above the confining layer at any point downgradient from the basin divide to the riparian wetland. To input hydraulic conductivity, Dr. Garlanger testified that he obtains a value "based on the spoil piles and the depth that the spoil pile will be cut down to adjacent to the preserved area." (Tr, p. 2993) Applying the output to a wetlands model that is similar to the streamflow model, Dr. Garlanger then engages in an iterative process in which he adjusts and readjusts the post- reclamation topography to produce the proper elevation of the bottom of each modeled wetland for the hydroperiod that is stipulated for the vegetative community to be created in that location. Besides changing the bottom slope of each seepage wetland, the major adjustments for each wetland are narrowing its outlet or lowering its bottom elevation to extend its hydroperiod and deepen its inundation depth or broadening its outlet or raising its bottom elevation to shorten its hydroperiod and make its bottom elevation more shallow. Dr. Garlanger modeled the iterative process by continuing it late into the hearing, as he and IMC surveyor, Ted Smith, produced a "final" post-reclamation topographic map at the end of the hearing. Actually, even this map is not final, as Dr. Garlanger testified that he and Mr. Smith will produce the final topographic map, for wetlands, after the area is mined, photographed, backfilled, and graded, at which time they will know the location and direction of the cast overburden spoil piles. Dr. Garlanger will then use a calibrated model to account for actual in situ conditions. Due to the flatness of OFG, it is possible, even at this late stage, to regrade the sand tailings, if necessary for hydrological purposes. Monitoring wells will produce substantial data on the hydraulic conductivity of the no-mine area, as well as the hydroperiods of existing wetlands and the frequency with which seepage wetlands release water. Dr. Garlanger and IMC employees will also measure the hydraulic conductivity of the sand tailings and overburden in the reclaimed areas, also to assist their preparation of the final topographic map. As noted above, ERP Specific Condition 16.B.2 requires IMC to model 24 reclaimed wetlands to demonstrate successful water table re-creation and hydroperiod and inundation depth reclamation. Dr. Garlanger applied his models to confirm that, for each of the 24 modeled wetlands, the design topography and hydrology would produce the targeted hydroperiod and inundation depth. Mr. Davis modeled three reclaimed bay swamps. Bay swamps are the hardest wetlands for which to reclaim an appropriate water table due to their long hydroperiod, shallow inundation depths, and seepage characteristics. As noted above, no successful reclamation of bay swamps has ever taken place, except under circumstances inapplicable to OFG. The three reclaimed bay swamps are: E008, a 0.7-acre bay swamp abutting the west side of the Stream 1e series; E063, a 1.3-acre flow-through bay swamp in Stream 5e; and W039, an 11.2-acre bayhead from which Stream 1w will flow. W039 is a very large reclaimed wetland. After the 20.7-acre wet prairie (W003) to be reclaimed at the headwaters of Stream 9w and the 23.8-acre mixed wetland hardwoods (E003) lining the Stream 1e series, W039 is the largest reclaimed wetland at OFG, along with E018/E020, which are the isolated wet prairie fringe and freshwater marsh on the east side of Section 4. Mr. Davis testified as a witness in surrebuttal, which was necessitated by a late change by IMC in post- reclamation topography for these three bay swamps. Mr. Davis implied that he understood these three bay swamps better than he did the other reclaimed wetland systems. The fact is that he did understand these three reclaimed bay swamps better than he did any other reclaimed wetlands. Prior to testifying, at the order of the Administrative Law Judge, Mr. Davis and Dr. Garlanger conferred so that Mr. Davis, in preparing to respond to the "final" post-reclamation topography, would clarify any uncertainty about how Dr. Garlanger was modeling these wetlands and projecting their hydroperiods and inundation depths. Mr. Davis identified Dr. Garlanger's topographical changes to these three bay swamps. For E008, Dr. Garlanger lowered the west end of the wetland by 0.5 feet, extended a 114-foot contour up the channel, just east of an existing 115- foot contour, and possibly adjusted the slope. For E063, Dr. Garlanger lowered the bottom elevation by one foot, so that it can now store 0.3 feet of water, given its overflow popoff elevation. And for W039, Dr. Garlanger removed a slope and flattened the bottom, so that it can store 0.3 feet of water. From Dr. Garlanger's spreadsheets, Mr. Davis found the values for runoff, groundwater, and rainfall entering each wetland. Mr. Davis found that E008 received only 10 percent of its water from runoff, more of its water from rainfall, but most of its water from groundwater inflow. Noting that E008 abuts a reclaimed xeric area, Mr. Davis recalled a 6:1 ratio of groundwater inflow to runoff inflow. Mr. Davis explained that E008 loses most of its water to runoff. Mr. Davis found that the groundwater input for this wetland was consistent with the testimony of biologists, such as Deputy Director Cantrell, that bay swamps are primarily groundwater-driven systems, but questioned the absence of groundwater outflow to the adjacent, down-gradient riparian wetland (E003). For E063, however, Mr. Davis found that inputs from runoff, a more important source of water for this wetland, were about the same as inputs from groundwater. Although he did not testify to this fact, E063 is an unusual reclaimed bay swamp because it is the only one that will serve as a flow-through wetland, situated, as it is, in the middle of Stream 5e. This would seem to explain the larger role of surface water inputs than is typical of bay swamps adjacent to uplands. For W039, Mr. Davis found a small percentage of surface water and larger percentages of groundwater and rainfall as water sources for this wetland. Rainfall inputs would be greater due to the large area of the wetland, according to Mr. Davis. As a headwater wetland abutting uplands, W039 would be expected to have a higher input ratio, than E063, of water from groundwater versus runoff. Mr. Davis noted that W039 lost about half of its water to evapotranspiration, which would also make sense given its large surface area, and half to runoff, which would make sense given its status as a headwater wetland for Stream 1w. Mr. Davis then ran his MIKE SHE model to predict the hydroperiod for each wetland. This model is described in more detail at the end of this subsection. In simulating the hydrology of the reclaimed OFG, Mr. Davis assumed that the overburden spoil piles would be parallel to the direction of groundwater flow and eliminated any differential depressional storage, but he continued to assume two inches of depressional storage. (These assumptions are also discussed in connection with the MIKE SHE model.) Mr. Davis found that the 11.2-acre W039 will have a perfect hydroperiod. Its inundation hydroperiod will range from 8.6 months to 11.0 months, from bottom to top. Its saturation hydroperiod, which is water measured to a depth of 0.5 foot below the bottom of the wetland, will range from 8.8 months to 11.1 months, from bottom to top. Mr. Davis found that the 1.3-acre E063 will have a hydroperiod of 11.9 months, which is 0.9 months too long. Mr. Davis found that the 0.7-acre E008 will have a hydroperiod of 2.7 months for inundation and 4.6 months for saturation, which is about four months too short. 714. Crediting Mr. Davis's testimony, IMC's successful reclamation of an 11.2-acre bay swamp, dependent upon upland surface water and groundwater inputs, would be an unprecedented success. As discussed below, Mr. Davis's depressional assumption is not credited, so the hydroperiod of E063 would be shorter than the 11.9 months that he has calculated. Also, this reclaimed system will be a seepage system that would not permit the build-up of much standing water, so, even crediting Mr. Davis's calculations, Dr. Garlanger has achieved the proper hydrology for its reclamation too. It is more difficult to resolve the conflict in simulated hydroperiods for E008. E008 is a more complicated wetland to model because it is part of a reclaimed complex consisting of nine reclaimed wetlands. No other wetland complex to be reclaimed at OFG approaches this number of different communities in a single complex. Except for E018, which, although 30.7 acres, is a much simpler wetland system because it is an isolated complex of three wetlands, no other wetland complex to be reclaimed at OFG comes close to the area of the Stream 1e series' wetlands complex, which totals 35.1 acres, or over 10 percent of the wetlands to be reclaimed at OFG. Mr. Davis's unjustified depressional assumption generates excessively wet conditions, but, for E008, he found its hydroperiod to be too short by at least 3.4 months. And, of course, E008 is the difficult-to-reclaim bay swamp. The two models invite comparisons at this point. Mr. Davis's model, MIKE SHE, enjoys wide usage for calculating streamflows, hydroperiods, and inundation depths, as it has been used in these cases. MIKE SHE has been used successfully in large-scale settings. On the other hand, HELP was designed for calculating water levels in landfills. For calculating the uplands component of streamflow and hydroperiod, HELPm is used by Dr. Garlanger alone. The author of HELP's routine for lateral drainage and the subroutine for unsaturated vertical flow, Bruce McEnroe, pointed out that this model could accommodate only a regular, homogenous drainage layer, as would be found in a landfill, and could not accommodate the irregular, heterogeneous aquifer layer, which Dr. Garlanger was modeling. Mr. McEnroe also explained that the downstream boundary condition of HELP, which is free drainage, does not resemble the actual downstream boundary condition, in which groundwater cannot typically drain freely, and this limitation applies equally to the pre-mining and post-reclamation scenarios. Mr. McEnroe also found a mathematical error, but Dr. Garlanger later showed that it would alter results inconsequentially. Complaining about Dr. Garlanger's failure to provide comment lines in his source code, where he modified HELP, Mr. McEnroe emphasized that the model, as modified and used by Dr. Garlanger, really was no longer the HELP model. Counterposed to Mr. McEnroe's testimony was the testimony of Mark Ross, an associate professor of civil and environmental engineering at the University of South Florida College of Engineering. Professor Ross has 20 years' experience in hydrological modeling and has worked with the Florida Institute of Phosphate Research model that Mr. Davis helped develop, but which no longer is supported or in much use. Professor Ross conducted a peer review of the HELPm model, spending 20-30 hours in the process, exclusive of time spent discussing the model with Dr. Garlanger. Professor Ross endorsed Dr. Garlanger's use of a single value of .75 for evapotranspiration in riparian wetlands and his use of a weighted hydraulic conductivity. Professor Ross acknowledged that more complex models were available, but correctly opined that the simplest model was best if it could accommodate all of the available data. Although the emphasis in his testimony was on streamflow, Professor Ross addressed wetlands and their hydroperiods sufficiently to assure that his opinion of the sufficiency of the HELPm model covered both tasks. The interplay between the complexity of the model and availability of data emerged more clearly with the testimony of Authority hydrologist Henrik Sorensen, who developed code for the MIKE SHE model. Successful applications of this model range from the Danube River to Kuala Lampur to South Florida. The Danube River project was the construction of a dam, and hydrologists ran MIKE SHE to project the impact of the diverted streamflow on riparian wetlands. The Kuala Lampur project was the construction of a new city, and hydrologists ran MIKE SHE to project the impact of vastly changing land uses on the water level in the peat wetlands. South Florida projects have included a number of analyses of wetlands impacts of proposed activities. At Lake Tohopekaliga, hydrologists used MIKE SHE to project the effects on the water table and nearby wetlands of a 6-7 foot drawdown of the lake to remove muck. Unlike HELPm, MIKE SHE is an integrated model, meaning that all of its components are contained in a single model. Significant for present purposes, MIKE SHE integrates surface water and groundwater analysis in a single model, so as to facilitate the modeling of the interaction between a stream and surficial aquifer. This is especially important for simulating interactions between the surface and shallow water tables. MIKE SHE is a physically based model, meaning that it is based on equations derived from the laws of nature. In using HELPm and the spreadsheet models for streamflow and hydroperiod, Dr. Garlanger of course relies on laws of nature, but also relies on conceptualizations to link equation-driven outputs. As Mr. Sorensen explained, MIKE SHE is based on differential equations, so that it is dynamic as to time and space, but Dr. Garlanger's models are based on analytic equations, so they are limited to state-to-state solutions. The conceptualizations that link outputs and essentially integrate Dr. Garlanger's pairs of models are only as good as the conceptualizer, who, in the case of Dr. Garlanger, is very good, but conceptualizations can become so pervasive that the model loses its reliability and adds little or nothing to a conceptual exercise using an analytic model. Unlike MIKE SHE, HELPm is a lump-parameter model, which necessitates the input of average hydraulic conductivities, evapotranspiration rates, and leaf area indexes over relatively large areas and, in the case of evapotranspiration rates, sometimes at the expense of their calculation. Constraining a model, by inputting, rather than calculating, values to force results within an expected range, may resemble validation, but when the inputs become unrealistic, as Dr. Garlanger's hydraulic conductivity values were before he modified HELP, the model's credibility is impaired, not enhanced, by the process. Conceptualizations can eventually constrain modeled simulations so as to undermine confidence in the model's outputs. Unlike HELPm, MIKE SHE is spatially distributed, so that different land use types may be distributed throughout the model. HELPm may input different land uses for different basins, but MIKE SHE allows the user to input different land uses for different cells, each of the user's choice as to size. As noted by Mr. McEnroe, HELP was developed to simulate a shallow system running to a drain, and it remains well-suited for this task. In tracking the water table, HELPm assumes a constant thickness of the drainage layer, which reflects the design of landfills, not natural systems. As IMC contends, the post-reclamation geology will be far simpler than the pre-mining geology at OFG, but even the post-reclamation hydrology is far more complex than that of a landfill. With a 35:1 ratio of hydraulic conductivities, the surficial aquifer must negotiate the 330-foot wide valleys of sand tailings separated from 180-foot wide plateaus by 33-degree overburden slopes. Overburden peaks would have been simpler than overburden plateaus because the effective depth of sand tailings would have been at least five feet over nearly all of the mined area; as already noted, these overburden plateaus mean that, exclusive of shavings and toppings, overburden at less than five feet finished depth occupies about 28 percent of the surface of the mined area. This geology is much more complicated than the uniform geology of a landfill, especially when trying to project the surface water and groundwater inputs and outputs of shallow wetlands and streams, some of which will span several phases of this unusual geology. Unlike HELPm, MIKE SHE is used for its designed purpose when used for projecting streamflow and wetlands hydroperiods and inundation depths. It is widely used, peer- reviewed and supported with two or three updates annually. Mr. Sorensen made an interesting point when he opined that HELPm does a good job with average flows. This explains HELPm's reliability in calculating streamflows. Notwithstanding the calculation of peak discharge curves, accurate streamflow calculations--at least in this part of Florida--tolerate calculations based on average conditions and approximations much better than do accurate calculations of hydroperiod and inundation depths, especially concerning shallow wetlands in wetland complexes. MIKE SHE is not without its shortcomings, at least as applied in these cases. For his MIKE SHE simulation, Mr. Davis did not simulate first- and second-order streams, perched groundwater flow (i.e., interflow), or shallow concentrated overland flow, and, despite the model's sophistication, he still had to perform conceptualizations, such as of drainage. Mr. Davis's first two post-reclamation runs, prior to his final run of the three bay swamps, suffered from faulty assumptions. First, he assumed depressions and differential depressions based on a settling that Dr. Garlanger, with geotechnical engineering experience that Mr. Davis lacks, testified convincingly would not occur. Second, Mr. Davis assumed that the spoil piles would be oriented perpendicular to the direction of groundwater flow. Mr. Davis likely knew that IMC had agreed on December 23, 2003, to orient the mine cuts parallel to the direction of groundwater flow, to the extent practicable. Mr. Davis modeled the perpendicular scenario presumably due to the vagueness of the assurance, set forth only in the introduction to the January submittal, and thus unenforceable, that IMC would grade or shave the tops of overburden plateaus of spoil piles running perpendicular to groundflow. When performing his modeling, Mr. Davis could not have known of Dr. Garlanger's recommendation, as contained in a letter dated April 29, 2004--less than two weeks prior to the start of the final hearing--that IMC shave 5-15 feet off any perpendicular cast overburden spoil piles or that IMC would accept Dr. Garlanger's recommendation during the final hearing. As agreed to by IMC during the hearing, it will bulldoze any spoil piles oriented perpendicular to the direction of groundwater flow from 5-15 feet: the cut would allow five feet of sand tailings nearest the groundwater divide and would progressively deepen to allow 15 feet of sand tailings nearest the stream. For an average width of overburden of 195 feet with five feet thickness of sand tailings, which is the width calculated above under the less-favorable hydrological scenario with regard to the bases of the sand tailings valleys and cast overburden plateaus, Dr. Garlanger calculated a hydraulic conductivity of seven feet per day. Mr. Davis assumed that IMC would not be able to orient the spoil piles parallel to groundwater flow, but nothing indicates that the proper orientation of these piles will be impracticable over significant areas of land. If a turn of the dragline near Horse Creek leaves a relatively short area of spoil perpendicular to groundwater flow and if IMC will shave this area as it does rows, shaving the pile down 15 feet would substantially improve water table/shallow wetland interaction over the portion of the mined area that is left with an overburden plateau. Conceptualizing the contingency of a spoil pile blocking groundwater flow close to Horse Creek, such as from the U-turn of the dragline at the end of a row, the bulldozing of that spoil pile down to an effective 15-foot depth would leave a depth of at least 15 feet of sand tailings running 1095 feet, as measured alongside of Horse Creek out to a point at which the spoil piles would again run parallel to groundwater flow. If all of the spoil piles turned at Horse Creek and assuming that IMC will cut down the cast overburden piled against the sides of the mine cuts, for the distance equal to the distance between the edge of the no-mine area to the start of the curve, sand tailings would be at least 15 feet deep. The real problem with MIKE SHE, as applied at OFG, is its sophistication. Mr. Sorensen admitted that he had not reviewed the data available for this part of Florida, but claimed that he knew, based on his work in South Florida, that sufficient data existed to run the MIKE SHE model. This is highly unlikely. In addition to Mr. Davis's observation about the lack of data, the record reveals a slimmer universe of data than Mr. Sorensen imagined to exist. Measured values for the hydraulic conductivity of pre-mined or post-reclaimed areas are largely unavailable. For specific reclamation sites, little data exist of pre-mining and post-reclamation soil textures, water tables, and wetland hydroperiods and stage elevations. By volume, the two most critical inputs are rainfall and evapotranspiration, which must be calculated or assumed because, for practical purposes, it cannot be directly measured. A major determinant of evapotranspiration is the water table elevation. The critical inputs of rainfall and water table elevations illustrate the shortcomings of the data for these cases. Rainfall records in the general area cover a long period of time, except that collection points are usually far enough away from the site to be analyzed as to raise the probability of significant daily fluctuations, which average out over time. MIKE SHE inputs rainfall spatially and hourly while HELPm inputs a single daily value. Without regard to any particular application, MIKE SHE is the superior model on this point, but its superiority is wasted when the data of hourly rainfall for individual cells are unavailable and values, often based on much longer intervals at much greater distances, must be interpolated. Records for most surficial aquifer monitoring wells in the area date back only to the early 1990s and are fairly spotty as to locations. MIKE SHE inputs spatially distributed groundwater elevations, while HELPm inputs a single value. If, as Mr. Davis testified, multiple inputs of water table elevations, for which direct OFG data are unavailable, must rely on a hydrologist's knowledge of surficial aquifer responses, MIKE SHE would share the same tendency of HELPm--at least for this variable--of relying on external guidance to produce its output. By contrast, the scientists studying the Danube River had lacked the resources for many years to do much more than collect data, so the data for the Danube MIKE SHE simulation was much richer than the data available at OFG. In such data-rich environments, MIKE SHE is the superior model for wetland hydroperiods and inundation depths. The question in these cases is whether, given the limitations of the OFG data and HELPm in simulating hydroperiods and inundation depths, IMC has still provided reasonable assurance of the reclamation of functional hydroperiods and inundation depths for reclaimed wetlands. IMC's case as to reclaimed hydroperiods and inundation depths is undermined by certain aspects of the use of HELPm in these cases. The scientific method, which lends confidence to analysis-driven conclusions to the extent that others can reproduce the analytic process, is poorly served by computer code that is modified without notation and modeling results that no one can reproduce due to the repeated intervention of the modeler, applying his touch and feel to the simulation. Only at the end of nearly eight weeks of hearing and a conference between Dr. Garlanger and Mr. Davis could Mr. Davis finally gain sufficient understanding of Dr. Garlanger's modeling process to make a meaningful comparison between his conclusions and Dr. Garlanger's conclusions for the hydroperiods and inundation depths of three wetlands. When applied to project streamflow, with its relative amenability to average inputs, and when applied to projecting the hydroperiods and inundation depths of deeper and more isolated wetlands, HELPm, as used by Dr. Garlanger, who, as an experienced and highly competent hydrologist, can adjust and re- adjust inputs and outputs, produces reasonable assurance. However, Mr. Davis's analysis of Dr. Garlanger's work and other factors preclude a finding that Dr. Garlanger has provided reasonable assurance that IMC will reclaim a functional hydroperiod and inundation depths for E008. The finding in the preceding paragraph implies no similar rejection of Dr. Garlanger's modeling of the other wetlands. Most of the modeled reclaimed wetlands are isolated and do not present the challenge of simulating complex interactions among them, where an error in modeling an upgradient wetland will cause an error in modeling a downgradient wetland. A couple of the modeled reclaimed wetlands are headwater wetlands, which Dr. Garlanger has demonstrated his ability to model in W039. Outside of the Stream 1e series, the only wetlands similar in location to E008, as attached to a riparian system, will be E040, E048, E054 complex, and W044, of which only E048 is to be modeled. Mr. Davis also addressed E048 in surrebuttal. A wetland forested mixed, E048 will replace a high-functioning bay swamp abutting, or a part of, the riparian wetlands of Horse Creek. Mr. Davis admitted that he could agree with Dr. Garlanger's analysis of inputs into E048 from isolated reclaimed wetlands upgradient of E048, so that he could agree with Dr. Garlanger's projected hydroperiod for this reclaimed wetland. However, Mr. Davis explained that E008 is located in the flatter Panhandle, but that E048, as well as the other reclaimed wetlands listed in the preceding paragraph, are located in areas characterized by steeper grades and more xeric conditions, which support Dr. Garlanger's emphasis on groundwater inputs over surface water inputs. Peak Discharges During mining, the ditch and berm system prevents adverse flooding. If it operates as intended, the ditch and berm system delays the release of runoff from OFG by re-routing it through one of the NPDES outfalls. This decreases peak discharge downstream of OFG. Presumably, IMC will operate the recharge wells in anticipation of storm events--allowing the water levels to lower in advance of storms and maintaining higher water levels in advance of drier periods--so as not to raise the possibility of flooding by way of accelerated discharges through the NPDES outfalls. Failure of the ditch and berm system is highly improbable. The sole failure reported in this record did not involve a system as engineered as the one proposed for OFG, according to Dr. Garlanger. Another possible source of flooding during mining arises from the designed blockage of flow from unmined areas. IMC plans a single, elevated pipeline crossing across Stream 2e, and Dr. Garlanger explained that the design of the culvert, as part of this temporary crossing, will not result in adverse flooding during mining. Similar design work by Dr. Garlanger will be necessitated, if DEP issues a Final Order incorporating the recommendation below that the Stream 1e series and its 25-year floodplain also be placed in the no-mine area. The riparian wetlands for the Stream 1e series are narrowest along Stream 1ee, so this may be the location that DEP determines for the dragline walkpath corridor, if DEP determines that IMC may maintain a dragline crossing anywhere along the Stream 1e series. The sole issue, during mining, involving peak discharges is a legal question, which is whether IMC's ditch and berm system has the capacity to accommodate the design storm. As noted below, the design storm is the 25-year storm, if the ditch and berm system is an open drainage system, and the design storm is the 100-year storm, if the ditch and berm system is a closed drainage system. The capacity of the proposed ditch and berm system is designed to accommodate the 25-year storm, but not the 100-year storm. The facts necessary to determine if the ditch and berm system is open or closed are set forth above. In its Final Order, DEP must characterize a system that is closed in the sense of the availability of a passive discharge outfall, but open in the sense that, with the intervention of pumps--assuming the availability of electricity during a major storm or alternative sources of power--excessive volumes of water may be moved to an NPDES outfall. This is a minor issue because, even if DEP determines that the ditch and berm is a closed system, IMC may easily heighten the berm as necessary to accommodate the 100-year storm. Post-reclamation, many of the changes that IMC will make to OFG will reduce peak discharges. The agricultural alterations that ditched and drained wetlands accelerated drainage and increased peak discharges downstream, as compared to pre-existing natural drainage rates and peak discharge volumes. The removal of these ditches, the net addition of 24 acres of forested wetlands and 48 acres of herbaceous wetlands, the addition of sinuosity and in-stream structure to the reclaimed streams, and the redesigning of the banks of the reclaimed streams so as to permit communication between the reclaimed streams and their floodplains will attenuate floodwaters, slow the rate of runoff, increase temporary storage, and ultimately reduce peak discharges from their present values. Dr. Garlanger modeled peak discharges using the Channel Hydrologic Analysis Networking (CHAN) model, which is a widely accepted model to simulate peak discharges. As already noted, Mr. Loper found several inconsistencies and flaws in earlier modeling, but Dr. Garlanger, undeterred, re-ran the CHAN simulations, incorporating Mr. Loper's findings, as Dr. Garlanger deemed necessary. The bottom line is that, post-reclamation, very small increases in peak discharges will occur at the Carlton cutout and would occur at some property immediately downstream of the point at which Horse Creek leaves OFG. The owners of the Carlton cutout consented to the very minor flooding of their pasture land, and IMC, of course, has no objection to the very minor flooding of its downstream property. Even absent these consents, the very limited extent and frequency of flooding, given the prevailing agricultural uses in the area, could not be characterized as adverse. Among the points raised by Mr. Loper was the absence of mapping of any floodplain besides the 100-year floodplain of Horse Creek. The omission of other floodplains is of environmental or biological importance, but not direct hydrological importance. If for no other reason than that IMC will replicate pre-mining topography, especially at the lower elevations, there will be no loss of floodplain storage. 4. Water Quality Water quality violations characterize past efforts to reclaim streams, other than Dogleg Branch, but the good water quality at Dogleg Branch means that the phosphate mining industry can reclaim streams and maintain water quality, post- reclamation. The intensive engineering in IMC's Stream Restoration Plan raises the prospect of successfully reclaimed water quality, especially among the simpler, more altered stream systems to be reclaimed. There is little doubt that, during mining, few impacts to water quality take place. The ditch and berm systems in place during the upstream mining in the Horse Creek sub-basin have permitted no degradation of water quality. Given the present condition of most of the tributaries and extensive agricultural alterations of most of OFG, successful reclamation may be expected to result in certain changes to water quality, among already-altered tributaries, at least once the reclaimed communities have established themselves. Successful reclamation of these streams and their channels should lower turbidity, by replacing their incised, unstable stream channels and banks with stable channels and banks. The addition of riffles and structure to the stream bed should raise dissolved oxygen levels in these streams. Excluding cattle from these streams, by placing cattle ponds away from Horse Creek and vegetatively screening Horse Creek and the tributaries, should lower adverse impacts, such as turbidity, due to cattle damage to the banks, and nutrient loading, due to cattle waste discharges. Phosphorus is sometimes temporarily higher after mining, but this may be merely a trophic surge. Water temperature will cool with the addition of forested riparian wetlands, once the canopy develops, where none presently exists. However, none of these effects can be anticipated with the reclamation of the relatively pristine Stream 1e series. Other reclamation activities may also be anticipated to improve water quality. These activities include adding net wetlands area, replacing low-functioning wetlands with wetlands with the potential to achieve high-functioning levels, concentrating wetlands more around streams, adding supportive uplands, and otherwise increasing storage and slowing runoff. These activities will raise the level of natural filtration, compared to the natural filtration presently performed at OFG. Wildlife Management and Habitat The wildlife management plans are reasonable accommodations of wildlife that presently use OFG, based on the frequency of the usage by each species and the degree of protection afforded certain species. It is important that IMC update wildlife utilization information for the period that elapses between the site visits and the commencement of mining; wildlife usage by some species, especially the Audubon crested caracara, was discovered shortly before the hearing and, if later found to be more intense, will require more intensive wildlife management plans. Likewise, DEP will need confirmation of FWC's approval of IMC's gopher tortoise relocation plan. Always of especial concern is the Florida panther. Obviously, the accommodations necessary for one or two male Florida panthers visiting OFG are far less intensive than those necessary if a breeding pair had established themselves at the site. Ms. Keenan testified that the ERP/CRP approval should have incorporated the entire Habitat Management Plan. Although the ERP and CRP approval would be strengthened by the incorporation of the Habitat Management Plan, and DEP may elect to do so in its Final Order, the provisions actually incorporated adequately address wildlife management concerns. The evidence fails to establish that OFG, which has been logged over the years, presently supports red cockaded woodpeckers. Clearly, as is the case with the Audubon's crested caracara, IMC is committed to develop, prior to mining, appropriate management plans that meet the needs of whatever species are found using OFG between the hearing and the start of mining. In general, the reclamation of OFG will improve the value of the area for wildlife habitat. The concentration of reclaimed wetlands reduces induced edge by 36 miles. Induced edges artificially increase predation and decrease the function of the upland/wetland interface for those aquatic- or wetland- dependent species that rely on adjacent uplands during parts of their life cycle. The increased breadth of the riparian wetlands, which has been detailed above, also improves wildlife utilization and habitat values by discourage cattle from using the streams and adjacent wetlands. IMC's reclamation plan slightly increases the area of cattle ponds and locates them farther away from sensitive wetlands and streams. IMC's reclamation plan also serves the often- overlooked needs of amphibians. The creation of isolated and ephemeral wetlands, which will not receive floodwaters from Horse Creek or its tributaries in most storm events, will enable these amphibians to develop sustainable populations and flourish. At present, two factors have led to artificially high levels of predation of these amphibians by small fish. Ditching of formerly isolated wetlands and the proximity of still- isolated wetlands to tributaries and their connected wetlands-- so as to allow runoff to connect the two systems during storm events--allow small fish to enter the habitat of the amphibians and prey upon them at artificially high rates. Mitigation/Reclamation--Financial Responsibility IMC has never defaulted on any of its reclamation or mitigation responsibilities. Its mitigation cost estimates are ample to cover the listed expenses of the proposed wetlands mitigation, with two exceptions. For reasons set forth in the Conclusions of Law, IMC is not required to post financial security at this time for any CRP reclamation, such as the reclamation of uplands not relied upon by aquatic- and wetlands- dependent species, that is not also ERP mitigation. However, the listed expenses omit two important items of ERP mitigation. First, the listed expenses omit Dr. Garlanger's fees for final engineering work on wetlands hydroperiods and inundation depths after backfilling has been completed. This is an expense covered under reclamation, as well as mitigation, pursuant to Chapter 378, Part III, and Chapter 373, Part IV, Florida Statutes, respectively. Second, the listed expenses omit the cost of acquiring sand tailings, transporting them to the mine cut, and contouring them. For the reasons discussed in the Conclusions of Law, the cost of obtaining and transporting the sand tailings is not required under reclamation, pursuant to Chapter 378, Part III, Florida Statutes, but is required under mitigation under Chapter 373, Part IV, Florida Statutes. Charlotte County contends that the cost of obtaining, transporting, and contouring sand tailings is $35,588 per acre, according to Mr. Irwin. This represents $10,588 per acre, as Mr. Irwin's "best guesstimate" for earthmoving, which seems to include the stripping and preserving of the A and B horizons, and $25,000 per acre for the shaping of wetland reclamation units. This testimony includes items for which financial security is not required, such as preserving the A and B horizons, and excludes the third-party cost of acquiring sufficient sand tailings to backfill the OFG mine cuts to the post-reclamation topography and transporting these sand tailings to OFG. The record supplies no information on these costs.
Recommendation It is RECOMMENDED that the Department of Environmental Protection issue a Final Order: Granting the ERP with the conditions set forth in paragraph 884 above. Approving the CRP with the conditions set forth in paragraph 919 above. Approving the WRP modification when the ERP and CRP approval become final and the time for appeal has passed or, if an appeal is taken, all appellate review has been completed. Dismissing the petition for hearing of Petitioner Peace River/Manasota Regional Water Supply Authority for lack of standing. DONE AND ENTERED this 9th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 2005. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Greg Munson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Douglas P. Manson Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606-2543 John R. Thomas Thomas & Associates, P.A. 233 3rd Street North, Suite 101 St. Petersburg, Florida 33701-3818 Edward P. de la Parte, Jr. de la Parte & Gilbert, P.A. Post Office Box 2350 Tampa, Florida 33601-2350 Renee Francis Lee Charlotte County Attorney's Office 18500 Murdock Circle Port Charlotte, Florida 33948 Alan R. Behrens Desoto Citizezs Against Pollution 8335 State Road 674 Wimauma, Florida 33598 Alan R. Behrens 4070 Southwest Armadillo Trail Arcadia, Florida 34266 Gary K. Oldehoff Sarasota County Attorney's Office 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236 Thomas L. Wright Lee County Attorney's Office 2115 Second Street Post Office Box 398 Ft. Myers, Florida 33902 Rory C. Ryan Holland & Knight, LLP Post Office Box 1526 Orlando, Florida 32802-1526 Frank Matthews Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Susan L. Stephens Holland & Knight, LLP Post Office Box 810 Tallahassee, Florida 32302-0810 Francine M. Ffolkes Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
Conclusions On May 11, 2007, the Division of Administrative Hearings (‘DOAH’) submitted a _ Recommended Order (“RO”) to the Department of Environmental Protection (‘DEP’) i in . these consolidated proceedings. Copies of the RO were served upon the Petitioners, Mellita A. Lane, Jacqueline M. Lane, Peter A. Lane, (“Lane Petitioners”); Friends of Perdido Bay,.Inc., and James A. Lane (“FOPB”); and the Co-Respondent, International Paper Company (“IP” ). On May 29, 2007, all Petitioners and Respondent IP filed Exceptions to the RO. Respondent DEP filed Exceptions to the RO and Motion for Remand. ; On June 8, 2007, the FOPB filed a Reply to IP’s Exceptions and a Response to DEP’s Motion for Remand and Exceptions. The Lane Petitioners filed their Response to iP’s and DEP’s Exceptions. Respondent DEP filed Responses to the Exceptions filed . by the FOPB, the Lane Petitioners and IP. Respondent IP filed Responses to the Exceptions of FOPB, the Lane Petitioners and DEP. This matter is now before me for. final agency action. . _ BACKGROUND » Florida Pulp and Paper Company first began operating the Cantonment paper mill in. 1941. St. Regis Paper Company (St. Regis” ) acquired the mill in 1946. In 4984, Champion International Corporation (“Champion”) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such a as printing and writing grades c of paper. In 2001, Champion merged with IP, and IP took over operation of the mill. The primary product of the mill continues to | be printing and writing paper. ' The mill s wastewater effluent i is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. The creek flows southwest into the northeastern portion of Perdido Bay. Elevenmile Creek is a freshwater stream for most of its length but is . sometimes tidally affected one to two miles from its mouth. Elevenmile Creek is designated as a Class I water. Perdido Bay is approximately 28 square miles in area and is bordered by Escambia County on the east and Baldwin County, Alabama, on the west. The dividing line between ‘the states runs north and south in the approximate middle of Perdido Bay. U.S. Highway 98 crosses the Bay, going east and west, and forms the boundary between what is-often referred to as the “Upper Bay” and “Lower Bay.” The Bay is relatively shallow, especially | in the Upper Bay, ranging in depth between five and ten feet. Perdido Bay i is designated asa Class ill water. Sometime around 1900, a manmade navigation channel was cut through the narrow strip of land separating Perdido Bay from the Gulf of Mexico. The channel, called Perdido Pass, allowed the salt waters of the Gulf to move with the tides up into Perdido Bay. Depending on tides and freshwater inflows, the tidal waters can move into the most northern portions of Perdido Bay and even further, into its tributaries and wetlands. The Perdido River flows into the northwest portion of Perdido Bay. Itis primarily a freshwater river but itis sometimes tidally influenced at and near its mouth. The Perdido River was designated an Outstanding Florida Water (“OFW’) in 11979. At the north end of Perdido Bay, between Elevenmile Creek and the Perdido River, isa large tract of land owned by IP called the Rainwater Tract, The northern part of the tract is primarily freshwater wetlands. The southern partis a tidal marsh. Tee and Wicker Lakes are small (approximately 50 acres in total surface area) tidal ponds within the tidal marsh. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to Tee and Wicker Lakes from Perdido Bay. | ' Before 1995, the mill had to have both state and federal permits. The former Florida Department of Environmental Regulation (‘DER’) issued St. Regis an industrial wastewater operating permit in 1982 pursuant to Chapter 403, Florida Statutes. The United States Environmental Protection Agency ("EPA") issued St. Regis a National Pollutant Discharge Elimination System (“ NPDES") permit i in 1983 pursuant to the Clean Water Act. When it acquired the facility in 1984, Champion continued to operate the mill under these two permits. In 1986, Champion obtained a construction permit from DER to install the oxygen delignification technology and other improvements to its wastewater treatment plant (‘WWTP’) in conjunction with the conversion of the production process from an unbleached to a modified bleached kraft production - process. In 1987, Champion applied to DER for an operating permit-for its modified WWITP and also petitioned for a variance from the Class iI water quality standards in Elevenmile Creek for iron, specific conductance, zinc, and transparency. DER's . subsequent proposal to issue the operating permit and variance was formally challenged. In 1988, while the challenges to the DER permit and variance were still pending, Champion dropped its application for the operating permit and requested a . temporary operating permit ("TOP"), instead. In December 1989, DER and Champion entered into Consent Order No. 87-1398 (‘the 1989 Consent Order’). The 1989 Consent Order included an allegation by DER that the mill's wastewater discharge was causing violations of state water quality standards in Elevenmile Creek for dissolved oxygen (“DO”), un-ionized ammonia, and biological integrity. The 1989 Consent Order authorized the continued operation of the mill, but established a process for addressing the water quality problems in Elevenmile Creek and Perdido Bay and bringing the mill into compliance in the future. Champion was required to install equipment to increase the DO in its effluent within a year. Champion was also required to submit a plan of study and, 30 months after DER's approval of the plan of study, to submit a study report on the impacts of the mill's effluent on DO in Elevenmile Creek and Perdido Bay and recommend measures for reducing or eliminating adverse impacts. The study report was also supposed to address the other water quality violations caused by Champion. A comprehensive study of the Perdido Bay system was undertaken by a team of 24 scientists lead by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed bya series of related scientific studies, which are referred to collectively in the RO as “the Livingston studies.” The 1989 Consent Order had no expiration date, but it was tied to the TOP, , which had an expiration date of December 1, 1994. Champion was to be in compliance with all applicable water quality standards by that date. The mill was not in compliance with all water quality standards in December 1 994. No enforcement action was taken by the Department and no modification of the 1989 Consent Order or TOP was formally proposed that would have provided a point of entry to any members of the public who might have objected. instead, the Department agreed through correspondence with . Champion to allow Champion to pursue additional water quality studies and to investigate alternatives to its discharge to Elevenmile Creek. - In 1994 and 1995, Champion applied to renew its state and federal wastewater permits, which were about to expire. The Department and EPA notified Champion that its existing permits were administratively extended during the review of the new permit applications. Today, the Cantonment mill is still operating under the 1989 TOP which, due to the administrative extension, did not terminate in December 1994, as stated on its face. In November 1 995, following EPA's delegation of NPDES permitting authority to the Department, the Department issued an order combining the state and federal ‘operating permits into a single permit identified as Wastewater Permit Number FLO002526-002-IWF/MT. During the period from 1992 to 2001, more water quality studies were conducted and Champion investigated alternatives to discharging into upper Elevenmile Creek, including land application of the effluent and relocation of the discharge to lower Elevenmiie Creek or the Escambia River. . In September 2002, while Champion's 1994 permit renewal application was still pending at DEP, IP submitted a revised permit renewal application to upgrade the WWTP and relocate its discharge. The WwTP upgrades consist of converting toa. modified activated sludge treatment process, incteasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (‘MGD’). IP proposes to convey the treated effluent by-pipeline 10.7 miles to the 1,464-acre wetland tract owned by IP (contained within-the larger Rainwater Tract), where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and Upper Perdido Bay. IP revised its permit application again in October 2005, to obtain authorization to: reconfigure the mill to produce unbleached brown paper for various grades of boxes. If the mill is reconfigured, only softwood (pine) would be used in the new process. On April 12, 2005, the Department published notice of its intent fo issue a proposed permit, consent order, experimental wetland exemption, and waiver. The — Department authorizations would allow IP to change its industrial wastewater treatment system at the mill, construct an effluent distribution system within the wetland tract, construct the 10.7-mile pipeline to transport its treated wastewater to the wetlands, and discharge the treated wastewater into the wetlands. In April 2005, Mellita A. Lane, Jacqueline M. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane (“Lane Petitioners”) filed identical petitions challenging the Department authorizations on numerous grounds. The Department forwarded the petitions to DOAH for assignment of an Administrative Law Judge (“ALJ”) and to conduct an evidentiary hearing. The Lane Petitioners subsequently amended their petitions. In May 2005, Friends of Perdido Bay, Inc., and James Lane filed a petition for | hearing to challenge the Department authorizations. The FOPB petition was forwarded to DOAH and the pending cases were consolidated for the fi nal hearing. The FOPB petition was subsequently amended. In October 2005, while the cases were pending, IP applied for a revision to its NPDES permit renewal application. The cases were abated so that the DEP could review and act on the permit revision. In January 2006, DEP issued a proposed revised | NPDES permit and a corresponding First Amendment to Consent Order. On July 26, 2006, the Department filed without objection a revision to the Consent Order. On July 31, 2006, the Department filed Joint Trial Exhibit 18 that integrated the Consent Order dated April 12, 2005, the First Amendment to Consent Order dated January 11, 2006, and the Department’s Notice of Minor Revision {o Consent Order filed on July 26, 2006. The DOAH Administrative Law Judge CALL") held a lengthy final hearing in these consolidated cases on May 31, June 1, 2, and.26 through 30, and July 17, 27, and 28, 2006. Prior to the hearing, the parties filed their Joint Pre-Hearing sit on May 24, 2006. The ALJ subsequenty submitted his RO on May 11, 2007. -
The Issue The issues in this case are: (1) whether Respondent, the Department of Environmental Protection (DEP) should grant the applications of Petitioner, John Rondolino, for an Environmental Resource Permit (ERP) and a Sovereign Lands Consent of Use for a proposed single-family dock on his property on the Rainbow River in near Dunnellon in Marion County, Florida; and (2) whether the landward extent of DEP's wetlands jurisdiction on Petitioner's property should be determined in this proceeding and, if so, the landward extent of those jurisdictional wetlands.
Findings Of Fact Procedural Background On February 23, 2000, DEP received an anonymous complaint regarding the clearing and filling of a parcel of property that was subsequently purchased by Petitioner, John Rondolino. Petitioner's property is Parcel Number 34581-001-02, Section 18, Township 16S, Range 19E, Marion County, 7069 South West 190th Avenue Road Extension, Dunnellon, Florida 34432-2827. Comprising approximately 1.159 acres, the pie-shaped parcel is located adjacent to the Rainbow River, which is a Class III Outstanding Florida Water and an Aquatic Preserve. As a result of the anonymous complaint, DEP inspected the site on February 24, 2000, and determined that a fill violation of Chapter 373, Part IV, Florida Statutes, had occurred. During this inspection, DEP delineated an informal wetland jurisdictional line such that approximately 0.47 acre of the property nearest the river was claimed as state jurisdictional wetlands. On March 29, 2000, Petitioner purchased the property upon which the alleged fill violation had occurred. On May 4, 2000, Petitioner and his wife met with DEP staff and indicated that he wanted to construct a structure for water-related activities (SFWRA)(a single-family dock) and make other improvements to the property. During this meeting, Petitioner challenged DEP's informal wetland jurisdictional line. At Petitioner's request, DEP delineated a second informal wetland jurisdictional line on May 23, 2000. The second delineation was somewhat different than the first but still included approximately the same amount of Petitioner's land within the state's jurisdictional wetlands. In discussion with DEP, Petitioner was informed that, in order to construct a SFWRA and make other improvements within the jurisdictional wetlands, he had to submit an application in accordance with Florida Administrative Code Rule 18-20.007 and Chapter 373, Florida Statutes1. It was recommended that, although Petitioner only wanted to build a single-family dock at the time, he might want to apply for all of the activities planned for the future in a single application. Petitioner was concerned that such an application might lead to expenditures which he did not want to incur at the time. During the summer of 2000, Petitioner consulted the Fowler, White law firm and, after approximately two months, had confirmed to him that it would be best for him to file a single application for all the activities Petitioner planned whether now or in the future. Petitioner authorized the law firm to prepare and file such an application. Petitioner's application was submitted in December 2000, and the law firm sent Petitioner a bill for $2,200 for legal services rendered. The application itself was not placed in evidence, but it was possible to infer some of its content from other evidence. DEP responded to Petitioner's application in January 2001 with a Request for Additional Information (RAI). When Petitioner consulted Fowler, White about a response to the RAI, he was informed that it would require another $15,000 to $20,000 of attorney fees and $25,000 to $30,000 of other professional fees to respond and prosecute the application to completion. In response, Petitioner terminated the relationship with Fowler, White and advised DEP to communicate only with him. Petitioner then responded to the RAI himself by letter dated February 22, 2001. He advised DEP that, in view of the costs associated with aspects of his application other than the proposed dock, as well as other factors, he was "withdrawing that portion of our permit application that deals with filling those portions of the property the DEP has delineated as a wetland." However, he continued to dispute the informal jurisdictional wetlands delineation, notifying DEP that he was "refuting the wetland delineation on the basis of section 62-340.550, F.A.C." and was "requesting in writing what would be considered by the DEP as sufficient hydrologic records or site specific hydrologic data of such a duration, frequency, and accuracy to demonstrate that the records or data are representative of the long-term hydrologic conditions, including the variability in quantity and seasonality of rainfall." (Emphasis in original letter.) If there was no such information available, Petitioner requested a meeting or an agreement "to outline the terms of study, including data collection, the specific model, model development and calibration, and model verification as stated in said section 62- 340.550, F.A.C." As for his proposed dock, Petitioner responded separately that he could not provide the requested information until DEP advised him if the proposed dock was in a Resource Protection Area (RPA) 1, 2, or 3. While DEP was preparing a reply to Petitioner's response to the RAI, Petitioner sent DEP several more letters in the succeeding months. Among other things, these letters repeated Petitioner's request for advice as to the RPA status of the location of his proposed dock. Also, by letter dated March 26, 2001, Petitioner made clear that he was not requesting, and refused to agree to, a formal delineation of the jurisdictional wetlands on his property; and yet by letter dated April 30, 2001, Petitioner informed DEP that he was still waiting for a response to his request to challenge DEP's jurisdictional wetland delineation under Rule 62-340.550. As Petitioner's letters kept coming in, DEP never finalized its reply, and Petitioner did not receive a response to his request until May 2001. One draft of a reply stated that DEP would involve its Wetland Evaluation and Delineation section in Tallahassee to assist in the disputed wetlands delineation on Petitioner's property at no cost to Petitioner and would have directed Petitioner to John Tobe, Ph.D., of that office "for more information regarding hydrologic records and site specific hydrologic data necessary to refute the Department's wetland delineation pursuant to 62-340.550, F.A.C." But this letter apparently never was finalized or sent, and there was no evidence that the information in the draft letter ever was imparted to Petitioner. On May 9, 2001, DEP sent Petitioner a letter preliminarily evaluating his application. Notwithstanding Petitioner's attempt to delete portions of the application dealing with fill of delineated wetlands, the evaluation addressed the entire application and presumed that proposed dredge and fill activities would occur in jurisdictional wetlands. As for the proposed dock, DEP's preliminary evaluation notified Petitioner: that it extended more than 20 percent of the width of the river at that location, contrary to Rule 18- 20.004(5)(a)1; that the proposed terminal platform was 225 square feet, contrary to Rule 18-20.004(5)(b)6; and that it extended out from the shoreline to a depth greater than -4 feet, contrary to Rule 18-20.004(5)(b)3. (None of these citations refers to special requirements for docks in an RPA.) DEP then suggested, based on "a thorough evaluation of the project location," how Petitioner could amend his application to cure those defects, including for Petitioner's use a scaled drawing of a proposed dock alignment in relation to a large bed of paspaladium geminatum (also known as knot grass or Egyptian paspaladium) (RPA 1) and some disturbed knot grass (RPA 2) determined by DEP to exist in the river at the project location. In response, Petitioner wrote DEP a letter dated May 21, 2001, stating that DEP's preliminary evaluation ignored prior correspondence amending Petitioner's proposed dock application which Petitioner said cured the very defects cited in the preliminary evaluation. (None of this alleged previous correspondence was placed in evidence or, except as discussed in Petitioner's letter dated May 21, 2001, referenced in other testimony or evidence.) Petitioner's letter then attached a drawing of the amended proposed dock and repeated the substance of the alleged prior amendments to the dock application: reduction of the length of the dock to 40 feet from the waters edge, terminating in water -3 feet deep, to comply with Rule 18- 20.004(5)(a)1 and Rule 18-20.004(5)(b)3; and reduction of the size of the terminal platform to 160 square feet to comply with Rule 18-20.004(5)(b)6 (although the exact dimensions of the terminal platform were left undetermined, and it appeared from the attached drawing that the 160 square foot terminal platform was alongside the end of the access pier). Petitioner's letter dated May 21, 2001, acknowledged that DEP's proposed alternative alignment and dock structure was designed to avoid the RPA 1 and RPA 2 knot grass beds determined by DEP to exist at the project location. But Petitioner pointed out that under DEP's proposed alignment mooring pilings would have to be eliminated from Petitioner's project, or else they either would encroach into the 25-foot setback from the downriver neighbor's riparian line or the dock structure would have to be moved further upriver, which would place it directly over the knot grass bed. Petitioner's letter dated May 21, 2001, also acknowledged that DEP's drawing depicted the area where Petitioner proposed to place the dock as covered with RPA 1 and RPA 2 knot grass. However, Petitioner's letter disputed the accuracy of DEP's depiction, maintaining that "the area described . . . as 'disturbed emergent grassbed' in fact is an area where the weeds have begun to encroach into the existing access channel and cut off access to the property." On June 4, 2001, DEP issued a Consolidated Notice of Denial. Despite Petitioner's attempt to delete portions of his application dealing with fill of delineated wetlands, the Consolidated Notice of Denial addressed and denied Petitioner's original application in its entirety. In so doing, it also addressed at length Petitioner's position that his proposed fill activities were planned to take place in areas upland of and outside DEP's jurisdictional wetlands and that no ERP was required. In response to DEP's Consolidated Notice of Denial, Petitioner requested an administrative proceeding. During the course of this proceeding, Petitioner has made it clear that he has deleted portions of his application dealing with fill of delineated wetlands, leaving only the application for an ERP and consent of use for his proposed dock. However, he also seeks a determination that DEP's jurisdictional wetlands do not extend landward to the areas Petitioner plans to fill. Jurisdictional Wetlands Delineation DEP's first informal jurisdictional wetlands delineation on February 24, 2000, was performed by Blake Meinecke and Brad Rosenblatt. Both had experience performing jurisdictional wetland delineations for DEP. At the time, Meinecke had been a DEP employee for three years; Rosenblatt had been with DEP for about a year and a half. They walked the property, took photographs, took some soil samples, made field notes, and placed seven flags on the property signifying the landward extent of jurisdictional wetlands at those points. They connected the flags to delineate a jurisdictional wetlands boundary line. The field notes and jurisdictional wetlands boundary delineation indicated that the first flag was placed three feet from the downriver property line and 145 feet landward of the river shoreline; the second flag was placed 28 feet upriver from the first flag and 149 feet from the river shoreline; the third flag was placed 53 feet upriver from the second flag and 113 feet from the river shoreline; the fourth flag was placed 75 feet upriver from the third flag and 97 feet from the river shoreline; the fifth flag was placed 102 feet upriver from the fourth flag and 92 feet from the river shoreline; the sixth flag was placed 121 feet upriver from the fifth flag and 108 feet from the river shoreline; and the seventh flag was placed 147 feet upriver from the sixth flag and 111 feet from the river shoreline. It is not clear from those documents whether the seventh flag was placed directly on Petitioner's upstream property line or at some distance inside the property line. The field notes suggested the presence of two sweet gum trees near the landward extent of the jurisdictional wetlands in the vicinity of the second flag, a bay tree within the jurisdictional wetlands closer to the river between the second and third flags, four bay trees2 within the jurisdictional wetlands at approximately the same distance from the river between the fourth and sixth flags, and bay trees and "osmunda" within the jurisdictional wetlands between the sixth and seventh flags. An Enforcement Inspection Report prepared in connection with the informal wetlands delineation added more specifics, indicating the presence of Magnolia virginianica [sic],3 Liquidambar sturaciflua [sic], Acer rubrum, and Osmunda regalis. It also indicated the presence of "[v]egetated tussocks/hummocks," which were referred to as "hydrologic indicators," and a "[m]ucky modified mineral layer present, greater than 2' [sic] within the first 6 inches." The photographs depicted mucky soils near the river shoreline; it is not clear from the photographs how far landward the obviously mucky soils extend. DEP's second informal jurisdictional wetlands delineation on May 23, 2000, was performed by Allen Shuey, who has 16 years of experience doing and teaching jurisdictional wetlands delineations for DEP and its predecessor agency, assisted by Blake Meinecke. Shuey first re-staked the flags in the positions indicated in the first informal delineation and took soil samples. First, samples were taken in areas where confirmation of muck soils appeared likely. Then soil samples were taken in sandier-looking places farther upslope away from the river where wetland species Shuey saw growing made him suspect that the soils had to be mucky under the sand. Altogether at least 6-20 soil samples were taken. They confirmed to Shuey that the soil was indeed mucky, even where covered with a thin layer of sand. Shuey made some field notes and adjusted the placement of the seven flags on the property signifying the landward extent of jurisdictional wetlands at those points. He then connected the flags to delineate an adjusted jurisdictional wetlands boundary line. As indicated by Shuey's field notes and jurisdictional wetlands boundary delineation, Shuey adjusted the first two flags towards the river, the first by 26 feet and the second by 15 feet; he adjusted the next five flags landward, the third by 21 feet, the fourth by 17 feet, the fifth by 28 feet, the sixth by 14, and the seventh by 8 feet; he also moved the seventh flag upriver by 5 feet. Generally, Shuey moved the boundary line closer to the river on the downriver side of the property and away from the river on the upriver side. As a result, the sweet gum trees no longer were within the jurisdictional wetlands,4 and Petitioner had them removed. Shuey's field notes listed numerous plant species, including water hemlock, dogwood (blue), cephalanthis [sic], Jack-in-the-Pulpit, centella, apios (potato Bear), Boja Maria, Woodwardia, royal fern, and climbing hydrangia [sic] (on sides). Like Meinecke and Rosenblatt before him, Shuey failed to list either of the wetland species Shuey says prompted him to take soil samples farther upslope. His best explanation for these failures was that the lists were not meant to be exhaustive, but he also characterized the failures as "unfortunate." As will be seen, one of the species--Saururus cernuus (common name, lizard's tail)--was later listed in answers to interrogatories; the other-osmunda cinnamomea (a/k/a cinnamon fern)--was never mentioned before Shuey's final hearing testimony. Shuey's notes also indicated mucky mineral soils (2 inches within the first 6 inches), ferns on tussocks, and moisture on the bottom layer of wood chip fill on the property. Except for stating that the climbing hydrangea was "on sides," Shuey's notes did not specify the location of the plants, soils, or moist wood chips on the property. Shuey's Enforcement Inspection Report prepared in connection with his informal wetlands delineation indicated the presence of: Magnolia virginianica [sic], Liquidambar sturaciflua [sic], and Acer rubrum in the tree canopy; Boja maria cylindrica, Cutica mexicana, Cephalanthis [sic] occidentalis, and Cornus foemina in the understory; and herbaceous Woodwardia virginica, Arisaema triphylum, Centella spp., and Osmunda regalis. It also indicated the presence of "[v]egetated fern tussocks/hummocks," which were referred to as "hydrologic indicators," and a "[m]ucky modified mineral layer present, greater than 2' [sic] within the first 6 inches." Shuey's Enforcement Inspection Report also noted: "Vegetation on the property has apparently been cleared since the original inspection of the complaint." Meinecke visited Petitioner's property again on April 23, 2001, with DEP Environmental Specialist Pete Slezinski, who manages biological and resource issues in the Rainbow River Aquatic Preserve. However, they traveled by boat and focused on the proposed dock alignment; they did not consider wetland jurisdictional issues on this visit. DEP's Consolidated Notice of Denial issued on June 4, 2001, stated in part: Selective removal of both herbaceous and canopy species appeared to have taken place within the wetland area. Mulched vegetation remnants from the removal activity appears to have been spread within the bayhead. The bottom of the mulch layer appeared to be moist. The canopy of the wetland area is dominated by sweet bay (Magnolia virginianica [sic]), an obligate wetland species, red maple (Acer rubrum) and sweet gum (liquidambar styraciflua) which are facultative wet wetland species. The understory within the wetland area contained false nettle (Boja maria cylindrica), water hemlock (Cutica mexicana) and buttonbush (Cepahalanthis [sic] occidentalis) which are obligate wetland species, along with blue dogwood (Cornus foemina) a facultative wet wetland species. Herbaceous and groundcover species observed within the wetland area were jack-in-the-pulpit (Arisaema triphylum), pennywort (Centella sp.), Virginia chain fern (Woodwardia virginica), which are facultative wet wetland species, along with royal fern (Osmunda regalis), an obligate wetland species. Soil samples taken throughout the wetland area indicated a prevalent mucky mineral layer at least 2 inches thick, and within the first 6 inches. Hyrologic indicators on site include the presence of fern tussocks. DEP's Consolidated Notice of Denial also stated: Maps and topographic aerials obtained by the Department show that the property is located on the inside of a bend in the Rainbow River. Because of the project location on the point bar, and its associated lower water velocities, the shoreline experiences higher siltation rates due [to] the deposition of suspended solids as the water slows. It can also be observed from historic aerials that the limits of the wetland area on the property have remained constant since 1972. Through Shuey's authorship, DEP also responded to Petitioner's discovery interrogatories in this case on the subject of the jurisdictional wetlands delineation. Except as pointed out in subsequent findings, Shuey's testimony supported the interrogatory answers. Apparently not wanting to stumble into an inadvertent admission that there are two separate wetlands on Petitioner's property, DEP declined to accept Petitioner's requests in several of the interrogatories that, in answering them, DEP "[c]onsider the area upland of the row of bay trees and area water ward [sic] of the bay trees separately." DEP responded consistently that there was "no justification" to do so since "[t]he wetland area delineated" was "one wetland area." Shuey testified that he actually does consider different parts of wetlands separately in certain circumstances. For example, in this case, where there was canopy, he considered the canopy vegetation; where the canopy had been cut, he looked at under-story or, if there was no under-story, ground cover; where there was not even any ground cover due to mowing, he looked only at soils. He used different means of analyzing the different areas in the exercise of professional judgment. Shuey's testimony was not always clear as to exactly how he analyzed the different areas so as to arrive at his jurisdictional wetlands delineation. Asked in Petitioner's interrogatories "whether any portions of Petitioner's property is considered . . . 'inundated' or 'saturated'," DEP responded that the wetlands jurisdictional boundary established by DEP on Petitioner's property was based on the "area [being] considered 'inundated' and 'saturated' to the extent that the area supports water dependent vegetation and has soils which have developed 'Hydric Soil Indicators.'" Asked in Petitioner's interrogatories for "any records of hydrologic evidence of regular and periodic inundation and saturation," DEP limited its response to a 1972 topographic map, a 1996 aerial map, and a Soil Survey published in 1979. Asked in Petitioner's interrogatories to explain how DEP applied "reasonable scientific judgment . . . in evaluating all reliable information," DEP responded that it included within the jurisdictional wetlands land "from the river to where two wetland indicators consistently occurred together, the presence of obligate and facultative wetland plants and soils which had hydric indicators such as the presence of peat soils and/or soils which had a mucky layer or texture." DEP also stated that the 1979 Soil Survey confirmed that soils in the area were "labeled a poorly drained soil unit (Pm-Placid sand)." Asked to detail its analysis, DEP stated: Much of the vegetation in the wetland area had been removed by the Petitioner prior to the [sic] any site visits by the Department. Some of the canopy vegetation was removed and virtually all of the under-story and ground cover had been removed. In determining if the area was a wetland the Department was forced to look at the remaining vegetation [in] all three strata and the remains of vegetation (stumps, branches, leaves etc.) plus the soils in determining that this area was a wetland. A compete species list for the wetland area was not compiled . . .. Only dominant species and species which are crucial to determining the upland edge of the wetland were recorded and/or noted specifically. Species noted on site or recorded in notes but not included in the Denial include: At this point in the answer, DEP listed the following plants listed in Florida Administrative Code Rule Chapter 62-340: in the canopy, Quercus laurifolia (laurel oak), Persea palustris (swamp bay), Sabal palmetto (cabbage palm); in the under-story, Cornus foemina (swamp dogwood), Myrica cerifera (wax myrtle); and, as ground cover, Saururus cernuus (lizard's tail). DEP also listed as ground cover Apios americana (groundnut), which is a vine not listed in the Florida Administrative Code but which a wetland plant. (Vines are not listed in Rule 62-340.450 because it can be difficult to determine where they originate.) DEP stated that it could not answer Petitioner's interrogatory asking for percentages of upland, obligate, facultative wet, and facultative vegetation in the canopy, under- story, and ground cover for two reasons: first, "Petitioner had removed part of the canopy" and "virtually eliminated" the under- story and ground cover (although, DEP maintained, "the dominance of wetland species in an area still can be determined by examination of stumps, vegetation re-sprouts, and the remains of vegetation (branches leaves, etc) which remain"); and, second, no specific cover estimates by strata were taken. Notwithstanding DEP's answers to interrogatories, Shuey insisted in testimony at final hearing that he did visually estimate percentage of cover in the canopy (although he did not make a note of his estimate) and applied test (b) of Rule 62- 340.300(2) to delineate the wetlands on Petitioner's property. When Petitioner asked at final hearing, Shuey provided an estimate of greater than 80 percent cover of obligate and facultative wetland species in the canopy, at least in the forested area closer to the river, based on recently-cut stumps. Pressed further by questioning by DEP counsel, Shuey increased the estimate to "probably greater than 85%." It was clear from the testimony, but it appears that Shuey meant to also qualify the 85 percent coverage estimate to apply to canopy in the forested part of the wetlands based on recently-cut stumps. It appears that the recently-cut stumps included in Shuey's canopy cover estimate are the Persea palustris (swamp bay) reintroduced through DEP's interrogatory answers to the list of species in the canopy after having been deleted from earlier lists and replaced by Magnolia virginiana (sweet bay). As reflected in the previous findings, DEP's interrogatory answer was the first mention of any kind of oak being on the property. This interrogatory answer was given after Petitioner took the position that there were several large laurel oaks (Quercus hemisphaerica) on the property. After the interrogatory answer, Petitioner took the position that Shuey used the incorrect scientific name in the interrogatory answer's listing of the canopy vegetation in the wetland area. In testimony at final hearing, Shuey acknowledged that the interrogatory answer's listing of the canopy vegetation in the wetland area was in error in giving laurel oak as the common name of Quercus laurifolia; he testified that he meant to list swamp bay as the common name for that species. Actually, Quercus laurifolia is an incorrect scientific name; swamp bay is one of the common names for the facultative wetland species, Quercus laurifolia Michauxii. (Another common name for that species is swamp chestnut oak.) Perhaps misled by Shuey's errors, Petitioner also erred in contending that swamp laurel oak cannot be used as either an obligate or a facultative wetland species under test (b) because Quercus laurifolia is not listed under Rule 62-340.450. Quercus laurifolia is not listed, but Quercus laurifolia Michauxii is. In addition to the confusion in naming the different oak species, it also is not clear from the evidence whether the oaks considered by Shuey in estimating canopy cover percentages were laurifolia Michauxii or hemisphaerica. Shown photographs of a number of oak trees on the property, Shuey was unable to identify the species with any certainty. As previously indicated, it was not clear that Shuey testified to a canopy cover percentage for the delineated wetlands area as a whole (as opposed to just the forested portion). But Shuey clearly conceded that, if the trees he identified as laurifolia Michauxii were actually hemisphaerica, the percentage of obligate and facultative wetland species in the canopy of the delineated wetlands area as a whole would be less than 80 percent. As reflected in previous findings, DEP's interrogatory answer was the first mention of lizard's tail being on the property. No lizard's tail or cinnamon fern was evident in any of the photographs placed in evidence by Petitioner. But these photographs were taken by Petitioner in February 2001, well after DEP's site visits; and the evidence was that Petitioner now regularly mows the area upland of the line of bay trees on his property. Even if any lizard's tails or cinnamon ferns were there at the time of the photographs, it is not clear whether the photographs would have been taken close enough or with the necessary resolution to detect these plants, depending on their growth stage. As previously indicated, it appears that in applying test (b) Shuey may have estimated canopy coverage based on recently-cut stumps; he also may have "dropped strata" in places where canopy trees had been cut or were nonexistent so as to estimate cover percentages for lower strata. In places where all vegetation was removed and mowed, it appeared that he relied on soil characteristics. Shuey's testimony at final hearing appears to have been the first explicit notice to Petitioner that DEP also applied test (d) of Rule 62-340.300(2) to delineate the wetlands on Petitioner's property (although it is possible to glean from a fair reading of the interrogatory answers that DEP was not only relying on test (b)). Although Shuey's testimony was not clear, it appears that he may have used test (b) for the part of the wetlands closer to the river and test (d) for the part landward of the line of bay trees. It appears that the indicators DEP variously referred to as vegetated or fern tussocks or hummocks and relied on under test (d) were essentially thick root mats. Like elevated patches of soil that allow plants to grow in places frequently inundated or saturated, these elevated root mats similarly allow plants to survive those conditions. It was not clear from the evidence exactly where Shuey saw these vegetated or fern tussocks and hummocks. Shuey conceded that they did not exist throughout the area DEP delineated as jurisdictional wetlands on Petitioner's property. Neither Shuey, Meinecke, or Rosenblatt took any pictures to verify where these indicators were on the property or even specifically noted or reported exactly where they were found. Although Shuey maintained that some of these indicators were seen landward of the line of bay trees on the property, it is not clear from the evidence whether they actually were found on that part of the property. Shuey testified at final hearing that, contrary to the interrogatory answers, he did not use the 1972 topographic map or any aerial photography in delineating jurisdictional wetlands on Petitioner's property and did not see how they would be useful in this wetlands delineation. He thought their only usefulness in connection with this case might have been to determine whether any wetland vegetation had been removed. DEP also re-called William Vorstadt on the subject of DEP's jurisdictional wetlands delineation on Petitioner's property. Vorstadt visited the site twice, the second time in January 2002, and concurred with Shuey's jurisdictional boundary line. Vorstadt took two sample soil borings, one between the boundary line and the line of bay trees and another landward of the boundary line. Both samples revealed wet, hydric soils which Vorstadt considered to be hydrologic indicators of inundation. At the time of Vorstadt's visits, the area between the line of bay trees and the boundary lined had been well-mowed in the vicinity of the flags Shuey placed on the property. Vorstadt was unable to determine much about the vegetation that might have been there; nor could he determine much about vegetation that might have been there in the past. There was no evidence that any holes were dug at any time by any DEP personnel to establish the level of the water table on Petitioner's property. There was no evidence to establish the seasonal high water table on the property. Petitioner contended that development on lots upriver and downriver from Petitioner's property altered the hydrology on Petitioner's property so that hydric soils can no longer form or be sustained, and wetland vegetation adapted for life in saturated soils no longer can be supported there. But, except with respect to narrow strips of land along the boundary lines between Petitioner's property and the adjoining lots upriver and downriver, there was no evidence whatsoever to prove Petitioner's contention in this regard. (In addition, the evidence was clear that there are at least some jurisdictional wetlands on Petitioner's property.) It appeared from photographs introduced into evidence by Petitioner that relatively narrow strips of land along the boundary lines between Petitioner's property and the adjoining lots upriver and downriver are higher than the rest of Petitioner's property, giving the impression of ridges along the property boundary lines, especially the upriver boundary line. These ridges approximately coincide with the land upriver of the seventh flag and downriver of the first flag placed on the property during DEP's informal wetlands delineations. Petitioner suggested that these ridges were formed when the neighboring property owners filled their lots as part of development and that fill material spilled over onto the property Petitioner purchased. Shuey agreed in testimony that, if the ridges were the result of fill that altered the character of the land, so as to no longer be periodically inundated and saturated, and no longer support wetland plant species, the land no longer would be considered jurisdictional wetlands. However, while it appears that the upriver ridge may well have been part of a berm along that boundary line, there was no proof as to how the smaller apparent ridge on the downriver side came to be. In addition, it was not clear from the evidence whether the ridges should be included in the jurisdictional wetlands on Petitioner's property. Petitioner attempted to utilize various aerial photographs to establish that his property had no jurisdictional wetlands because they showed only evergreen trees. But the only witness who spoke to the aerials was Shuey; and, while acknowledging his inability to discern wetlands from the aerials, Shuey refused to agree that the aerials showed only evergreen trees or that they showed only non-wetlands on Petitioner's property. Besides, as previously found, it was clear that there are at least some jurisdictional wetlands on Petitioner's property. Shuey testified persuasively that the aerials are of little or no use in determining where to draw the line between jurisdictional wetlands and uplands on Petitioner's property. Petitioner introduced in evidence several exhibits to establish that in late 1993 the Southwest Florida Water Management District (SWFWMD) delineated jurisdictional wetlands on the adjacent lot upriver from Petitioner's (the Thurman lot) and on a lot four lots downriver from Petitioner's property (the Grant lot). Petitioner contended that the landward extent of those wetlands delineations "approximated Control Elevation A, the top of the bank of the river which approximates the 31 foot contour line known as Control Elevation A the 10 year flood line." But the exhibits themselves are considered insufficient to prove all of Petitioner's contentions, and Petitioner introduced no other testimony or evidence to explain those wetlands delineations (except the testimony of Shuey, who refused to agree with all of Petitioner's contentions). It is not even clear from the evidence exactly where Control Elevation A, the 31-foot contour line, and 32-foot contour line are in relation to DEP's jurisdictional wetlands boundary on Petitioner's property. In addition, the relevance of the Grant wetlands delineation four lots downriver is questionable; it seems quite possible that site-specific conditions of Petitioner's property, which is at the center of the inside of a bend in the river, would result in a different wetlands delineation. As for the Thurman lot, it appears from some of the exhibits that Petitioner's property (at least on the upriver side of the lot) is lower than the Thurman lot; and the apparent 31-foot contour line sweeps significantly farther landward as it approaches and enters Petitioner's property. It seems that this might explain why wetlands on Petitioner's lot could be larger than those on the Thurman lot. At best, these exhibits raised suspicions that SWFWMD might have approved a wetlands jurisdictional boundary that approximated Control Elevation A (approximately the 31-foot contour line); if so, it also is possible that those delineations were done in error, or that the wetlands delineation methodology used by SWFWMD in 1993 was somewhat different from the current methodology codified in statute and rule, or both.5 Petitioner also introduced numerous exhibits relating to the construction of the canoe launch ramp, boathouse, and observation deck facilities at Rainbow Springs State Park near the river's head. Given the greater distance from Petitioner's property, these exhibits are even less relevant than the exhibits relating to the Grant lot. As Shuey testified, wetlands jurisdictional delineations are site-specific. In addition, like the Grant and Thurman lot exhibits, the State Park exhibits themselves are considered insufficient to prove all of Petitioner's contentions, and Petitioner introduced no other testimony or evidence to explain them (except the testimony of DEP witnesses, who refused to agree with all of Petitioner's contentions). At best, these exhibits raised suspicions that SWFWMD might have approved a wetlands jurisdictional boundary at the State Park that approximated either the shoreline or Control Elevation A (approximately the 31-foot contour line) and that DEP's facilities at the State Park might have been built in part on jurisdictional wetlands. Similarly, Petitioner introduced several generalized topographic and soils maps intended to prove that there are no wetlands on Petitioner's property, or perhaps that Petitioner's property is identical to the Grant and Thurman lots and the State Park property. But these generalized maps were insufficient to prove Petitioner's contentions. The maps themselves are considered insufficient to prove all of Petitioner's contentions, and Petitioner introduced no other testimony or evidence to explain them (except the testimony of Shuey, who refused to agree with all of Petitioner's contentions). Petitioner contended that DEP used one of the topographic maps to support a favorable wetlands delineation in its application to SWFWMD for a permit for the facilities at the State Park. But it actually appears that the map was only used as a location map. Proposed Single-Family Dock Neither party introduced into evidence either Petitioner's consolidated ERP/consent of use application or DEP's RAI. As a result, it cannot be determined from the evidence precisely what Petitioner has proposed or what additional documentation DEP requested. No cross-sections or plan views of the proposed project were in evidence. The only document submitted into evidence by Petitioner to illustrate his proposed dock structure was a partial copy of Petitioner's correspondence to DEP dated May 21, 2001. The letter referred to four attached drawings, but only one was attached to Petitioner's Exhibit 3B. The drawing included in the exhibit was not drawn "to-scale." In addition, it is unclear from the drawing whether the 160 square foot "terminal platform" included the four-foot walkway adjacent to the platform. As Petitioner suggested, the square footage of the terminal platform could be clarified in a final order. A more serious matter is the dock alignment. When the proposed dock is superimposed on DEP's drawing showing the existing knot grass beds adjacent to Petitioner's property, the proposed dock appears to cross and terminate over an area that is either an RPA 1 (knot grass beds "of the highest quality and condition for that area") or an RPA 2 (an area where the knot grass is "in transition with either declining resource protection area 1 resources or new pioneering resources within resource protection area 3"). See Florida Administrative Code Rule 18-20.003(54)-(55) for definitions of RPA 1 and RPA 2. Petitioner contended that his proposed dock alignment actually crosses and terminates over an area "characterized by the absence of any significant natural resource attributes" so as to be neither an RPA 1 nor an RPA 2, but rather an RPA 3. See Florida Administrative Code Rule 18-20.003(56) for definition of RPA 3. There was evidence of some hydrilla (an aquatic plant not considered "significant" but rather a harmful, invasive, exotic nuisance plant) in the vicinity of his proposed dock alignment between the water's edge and the knot grass beds, but Petitioner's evidence did not prove that the knot grass in the vicinity of Petitioner's proposed dock alignment is not continuous--i.e., that there is a clear path or channel between two separate beds of knot grass; to the contrary, the evidence was that the knot grass bed in the river adjacent to Petitioner's property is one continuous bed, mostly RPA 1 and some RPA 2. In addition, the evidence was that at least some of the area of declining knot grass in the vicinity of Petitioner's proposed dock alignment was thicker, more vigorous, and of better quality in the not-too-distant past. It is not clear from the evidence when it was thinned out. In addition, citing Joint Prehearing Statement of Undisputed Facts 29 and 30, Petitioner contended that his dock application fell victim to an invalid DEP policy that all resources in an aquatic preserve are "significant" so as to be either RPA 1 or RPA 2. The evidence failed to prove that DEP has such a policy. Indeed, Joint Prehearing Statement of Undisputed Facts 29 and 30 are to the contrary. While there may be room for Petitioner to quarrel with the interpretation of the RPA 1 and RPA 2 definitions given by one of DEP's witnesses (Pete Slezinski, who thought that any area having native vegetation or animals would be either an RPA 1 or RPA 2), Petitioner did not dispute that knot grass beds have "significant natural resource attributes" so as to qualify as RPA 1 or RPA 2. Petitioner also contended that he was singled out for denial of his proposed dock--i.e., that his would be the first and only dock on the Rainbow River to be denied a permit. Other than some aerial photographs indicating that a neighbor's dock may terminate in the vicinity of a spring head, Petitioner introduced no evidence whatsoever about the circumstances of any dock on the river except for DEP canoe launch ramp, boathouse, and observation deck facilities at the Rainbow Springs State Park near the head of the Rainbow River. The aerial photographs were inconclusive as to how close the neighbor's dock was to the spring head. There also was no evidence as to whether the neighbor's dock was permitted under the DEP rules now in effect or, if so, any particulars of the neighbor's dock application. Petitioner introduced a great deal of evidence concerning the DEP facilities at the State Park upriver. There were numerous photographs, some before construction of the facilities and many more during and after construction. There also was testimony from Slezinski, who had raised questions about initial plans for construction of the facilities. But Slezinski testified to his understanding that steps were taken in response to his concerns so as not to place facilities over any RPA 1 or RPA 2. Viewing the photographs, he was unable to conclude, and it is not clear, that any facilities were in fact placed over any RPA 1 or RPA 2 at the State Park. Petitioner also contended that DEP's denial of his dock application is a punitive measure, not supported by the facts, to deny him water access to his property. As evidence, Petitioner cited DEP's preliminary evaluation contained in its letter dated May 9, 2001, which cited some general requirements for docks in an aquatic preserve but did not specify any of the special requirements for docks over RPA 1 and RPA 2. But the preliminary evaluation contained a proposed dock alignment obviously intended to avoid RPA 1 and RPA 2 to the extent possible. The preliminary evaluation suggested that DEP would grant a modified application (minus mooring piling) in the proposed alignment meeting all of the general requirements. Petitioner attempted to modify his application by letter dated May 21, 2001, to address the general requirements cited in the preliminary evaluation, but he declined DEP's suggested dock alignment. As a result, in considering the modified application, DEP was constrained to apply the special requirements for docks in an RPA 1 or RPA 2. Contrary to Petitioner's contentions, these actions by DEP did not prove any intent to punish Petitioner. Finally, Petitioner contended that certain special rules for docks over RPA 1 or RPA 2--namely, those requiring minimum spacing between deck planks and requiring decking to be elevated--should not be applied because the knot grass in the river adjacent to Petitioner's property is "emergent," i.e., it grows from the bottom to and above the surface of the river and, Petitioner contends, "does not need the same concessions to assure . . . light penetration for the continued survival of the plants." Besides being essentially a rule challenge, a matter addressed in the Conclusions of Law, Petitioner introduced no evidence of the facts he alleges in support of his contention. To the contrary, Petitioner called Slezinski on the subject, and Slezinski attempted to explain that, while knot grass is "emergent," much of the plant is below the water surface and provides the functions of submerged aquatic vegetation. It would follow, and Petitioner put on no evidence to disprove, that knot grass also would have some of the needs of submerged aquatic vegetation for light penetration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP a final order denying Petitioner's application for an ERP and Sovereign Lands Consent of Use for his proposed single-family dock and declining to rule on the jurisdictional wetlands delineation issue for lack of jurisdiction. Jurisdiction is reserved for ten days to rule on the pending motions, if necessary. DONE AND ENTERED this 17th day of May, 2002, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2002.
The Issue The issue is whether Respondent, John Jozsa, should have a $6,000.00 administrative penalty imposed, take corrective action, and pay investigative costs for allegedly dredging 0.91 acres of wetlands and filling 0.52 acres of wetlands without a permit on his property located in unincorporated Sumter County, Florida, as alleged in a Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice) issued by Petitioner, Department of Environmental Protection (Department), on March 13, 2008.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The charges Respondent owns an approximate 4.5-acre parcel of land located at 1978 County Road 652A in unincorporated Sumter County, Florida. The parcel identification number is N29A003. The property is generally located east of Interstate 75, west of U.S. Highway 301, and just south of the City of Bushnell. According to aerial photographs, County Road 652A appears to begin at U.S Highway 301 and runs in a westerly direction where it forms the southern boundary of Respondent's parcel and terminates a short distance later. Southwest 80th Street also runs west from U.S. Highway 301 and forms the northern boundary of the property, while Southwest 20th Terrace runs in a north- south direction adjacent to its western boundary. Respondent purchased the parcel on September 27, 1993, and constructed a home on the site several years later. The property is contiguous to Mud Lake, a Class III waterbody lying to the southeast of Respondent's property. According to Respondent's Exhibit 2.b., at least a portion of the property is in the Federal Emergency Management Agency's (FEMA's) 100-year flood zone. While conducting a site inspection near Respondent's property on September 27, 2006, Brian Brown, an Environmental Specialist III in the Department's Tampa District Office, heard "heavy equipment" operating nearby and drove to Respondent's home. There he observed a "tracked vehicle" resembling a bulldozer "knocking down trees" and grading an area that appeared to be wetlands. Mr. Brown took photographs of the cleared land and the tracked vehicle to confirm his observations. See Department's Exhibits 2a. through d. At hearing, Respondent acknowledged that he had borrowed the equipment from a friend, Leo, to "level and smooth" the "uplands" and "other areas." After returning to his office, Mr. Brown first confirmed through information from the Sumter County Appraiser's Office that Respondent owned the property in question. He then reviewed aerial photographs of Respondent's property taken in 1993, 1997, 2002, and 2006 to determine the condition of the property in earlier years. These photographs reflected that before 2006, the parcel had no large cleared area like the one that he had observed on the northern half of the property. Mr. Brown also studied a soil survey of the area to determine the type of soils on Respondent's property, and he reviewed the Florida Wetlands Delineation Manual which is used to determine if property is wetlands or uplands. Finally, information in the Department's database revealed that Respondent had not applied for a permit to conduct the observed activities. Based on this preliminary information, Mr. Brown generated a request for a formal inspection of Respondent's property by filling out a complaint form. (Respondent continues to believe that Mr. Brown was not conducting a "routine" inspection in the area but rather was in the area because a neighbor had filed a complaint; however, the complaint was triggered by Mr. Brown, who filed a complaint form himself based on the observations he made on September 27, 2006.) Mr. Brown then contacted Respondent by letter to set up a date on which the property could be formally inspected to verify "that Wetlands and or Surface Waters of the State are not being impacted." In response to Mr. Brown's letter, Respondent advised the Department that it could inspect his property. Around 1:30 p.m. on November 14, 2006, Mr. Brown and Lee W. Hughes, another Department employee, inspected Respondent's property to determine whether Respondent's activities were conducted within wetlands and to what extent wetlands were impacted. Respondent was present during the inspection. The employees' observations are memorialized in photographs received in evidence as Department's Exhibits 11A through 11N. The two observed a "large" area north of Respondent's home that had been totally cleared and deforested. The center of the cleared property had been dredged or scraped to create a pond-like area several feet lower than the adjoining land, while the soils removed from the pond-like area had been used to create sculptured white side-casting perhaps ten inches high on the edges of the pond, filling additional wetlands. However, the pond was empty because of drought conditions. The Department's inspection revealed that the cleared area was wetlands because of the presence of various plant species which are indicative of wetlands, including Swamp Tupelo, Red Maple, American Elm, Swamp Dogwood, Dahoon Holly, Buttonbush, Swamp Laurel Oak, Carolina Willow, Elderberry, Soft Rush, Smartweed, and Dayflower. Also, there were hydrologic indicators such as water stain lines, elevated lichen lines, and hypertrophied lenticels. Finally, there were hydric soils found on the property. This was confirmed by ground-truthing (an on- site evaluation of the wetlands and their parameters to verify the on-site conditions), which revealed dark top soil at least four inches thick and the presence of muck. Collectively, these indicators are sufficient to make a finding that the impacted area was wetlands. See Fla. Admin. Code R. 62-340.200 and Department's Exhibit 9. The fact that the "home-site ha[d] [not] been delineated [as wetlands] by any other governmental agency," as asserted by Respondent in his Proposed Recommended Order, is not dispositive of the issue. Respondent's assertion that no dredged materials were taken off-site, and no fill was brought onto the property, was not challenged. A second inspection was conducted by Mr. Brown and Lindsay L. Brock, then a Department employee, on December 19, 2006, for the purpose of mapping the actual size of the impacted area with Global Positioning Satellite (GPS) equipment.6 The second inspection was necessary since the Department's GPS equipment was inoperative during the first inspection. Based on Ms. Brock's GPS calculations, which have been received in evidence as Department's Exhibit 19, the Department determined that the total area dredged was 0.91 acres, while the filled area was 0.52 acres. The total impacted area was 1.4 acres of wetlands. This amount was calculated by measuring the size of the pond, 0.91 acres, with the side-casting accounting for the remaining 0.52 acres. During the inspection, the area was also photographed a second time, and these photographs have been received in evidence as Department's Exhibits 12A through 12K. An Enforcement Inspection Report (Report) was later prepared by Mr. Brown summarizing the findings of the two inspections. That Report has been received in evidence as Department's Exhibit 10 and Respondent's Exhibit 1.e. At hearing, Mr. Brown reaffirmed that the findings in the Report were correct. Specifically, the wetlands in the disturbed area were characterized as having a dominance of Obligate and Facultative Wet species and numerous hydrologic indicators, as well as soils typically found in wetlands. A jurisdictional determination established that the impacted property was wetlands; that there were adverse impacts caused by the violations, i.e., impacts described in Sections 3.2.3.2, 3.2.3.3, 3.2.3.4(a), and 3.2.3.7 of the Basis of Review of the Southwest Florida Water Management District; and that there were cumulative and secondary impacts associated with the violations, i.e., the actual loss of 1.4 acres of forested hardwood wetlands (Gum Swamp-613), habitat loss, the alteration in the normal flow of detrital material to Mud Lake, and the reduction in the system's ability to cycle and control nutrient and pollutant levels. Because the impacted lands were wetlands, a permit is required in order to perform any dredging and filling. See Fla. Admin. Code 62-343.050. The Report recommended that a Notice be issued. On February 13, 2007, the Department's Tampa District Office sent Respondent a Warning Letter advising him "of possible violations of law for which [he] may be responsible, and to seek [his] cooperation in resolving the matter." Department's Exhibit 22 and Respondent's Exhibit 1.h. The letter also requested that Respondent meet with Mr. Brown to discuss the alleged violations. A meeting was held at the District Office on March 12, 2007, but efforts to resolve the matter were unsuccessful. During the informal discussions between the parties, and prior to the issuance of a Notice, Respondent requested an exemption under Section 373.406(1) and (6), Florida Statutes.7 The first subsection provides that no Department rule, regulation, or order affects the right of any person to capture, discharge, and use water "for purposes permitted by law." The second subsection provides that the Department may exempt "those activities that the . . . department determines will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the district." At hearing, Mr. Brown indicated that he did not respond to the exemption request because Respondent did not qualify. This is because dredging and filling of wetlands is not "permitted by law" without first obtaining a permit, and because, for the reasons cited in its Report, the Department construed the activities as having more than "minimal or insignificant" impacts. Given these circumstances, the statutory exemptions do not apply. The Notice was not issued until a year later on March 13, 2008. The reason for the delay is not of record. Besides contending that Mr. Brown's testimony was not credible, through examination of witnesses and the submission of various exhibits, Respondent raised numerous points to support his contentions that (a) the property is not wetlands, (b) no dredging or filling occurred, and (c) the activities are exempt from Department permitting requirements under several statutes.8 He also argued that the Department's decision to initiate an enforcement action against him was flawed or biased. The latter argument has been considered and rejected. Respondent first asserts that the wetlands on his property were already stressed and in bad condition, and that clearing the area and replanting vegetation in and around the pond area created a healthier environment for the vegetation and plants. While Mr. Brown conceded that the wetlands may have been stressed, that in itself does not cause the impacted property to lose its wetlands character, and a permit to dredge and fill the site is still required. Respondent also pointed out that the impacted area was dry before and after the activities occurred, and therefore the wetlands determination was incorrect. He further points out that the Department's representatives agreed that no water or moisture on the ground surface were observed during their two inspections. Given the number of wetland indicators found on the site even during drought conditions, the argument that the property is not wetlands has been rejected. See Finding of Fact 6, supra. Respondent also argued that an authoritative source (Hydric Soils of Florida Handbook) indicates that the soils in that area of the County are not the type typically found on wetlands. Specifically, the predominant soil on his property is identified as "Kanapaha sand, bouldery subsurface (25)," which is not considered a hydric soil. Mr. Brown explained, however, that notwithstanding what another source may state, it is necessary to verify the type of soil by performing field tests at the site. Ground-truthing performed during the first inspection confirmed the presence of soils typically found in wetlands. See Finding of Fact 7, supra. Respondent also questioned the accuracy of the Department's Exhibit 18, which is an aerial of Respondent's property created by Mr. Brown in February 2008 depicting a pond filled with water in the middle of the cleared area. Respondent contended that the map could not be accurate since the pond area was dry in February 2008 due to drought conditions. In response to this criticism, Mr. Brown noted that the map was not supposed to represent an actual aerial photograph taken in 2008. Rather, it was created for the purpose of superimposing on the property the pond-like area (with water added) observed during the 2006 inspections and was intended only to demonstrate the pond's size in relation to the size of the entire parcel. The exhibit was not tendered for the purpose of proving that the dredging and filling had occurred. Through examination of Mr. Brown, Respondent attempted to show that he qualified for a stormwater exemption under Section 403.813(2)(q), Florida Statutes, on the theory that his activities fell within the purview of that law. The statute exempts from permitting requirements the construction, operation, and maintenance of a stormwater management facility which is designed to "serve single-family residential projects, including duplexes, triplexes, and quadruplexes, if they are less than 10 acres total land and have less than 2 acres of impervious surface and if the facilities" satisfy three conditions. One condition is that the facility must "discharge into a stormwater discharge facility exempted or permitted by the department under this chapter which has sufficient capacity and treatment capability as specified in this chapter and is owned, maintained, or operated by a city, county, special district with drainage responsibility, or water management district . . . ." Id. Therefore, even if the pond-like area could be characterized as a stormwater facility, Respondent still does not meet the requirements of the statute since his "facility" does not discharge into another exempt or permitted facility as defined in the statute. In this case, the waters eventually discharge into Mud Lake, which was not shown to be an exempt or permitted stormwater facility. Respondent also questioned the manner in which the Department calculated the size of the impacted area for purposes of assessing an administrative penalty. See Department's Exhibit 21 and Respondent's Exhibit 1.j., in which penalties are assessed based on the dredged and filled areas each being "greater than one-half acre but less than or equal to one acre." Specifically, he argues that the combined dredged and filled areas exceed one acre in size, and under the terms of Section 403.121(3)(c), Florida Statutes, the administrative penalty schedule in the cited statute does not apply. To support this contention, Respondent noted that in responding to discovery, the Department acknowledged that the total impacted area was 1.4 acres. Section 403.121(3)(c), Florida Statutes, provides in relevant part that "the administrative penalty schedule shall not apply to a dredge and fill violation if the area dredged or filled exceeds one acre." In assessing penalties under the statute, the Department considers the dredging and filling as two separate violations. See Counts I and II, Notice. Therefore, it did not combine the two impacted areas for purposes of calculating a penalty under the administrative penalty schedule. While the statute is inartfully drawn and is arguably susceptible to more than one interpretation, the Department's interpretation is a reasonable and permissible one, and its computation is hereby accepted. (If Respondent's construction of the statute was approved, and the two impacted areas were combined, this would not mean that the Department could not assess a penalty. Rather, it appears the Department would then have the choice of (a) filing an action in circuit court seeking the imposition of civil (rather than administrative) penalties, or (b) assessing an administrative penalty under Section 403.121(9), Florida Statutes, which did not exceed $5,000.00 per violation or $10,000.00 for all violations.) Respondent also contended that he was simply performing landscaping and gardening activities with a tracked vehicle, and that no "excavation" within the meaning of Section 373.403(13), Florida Statutes, occurred. That statute defines dredging as "excavation, by any means, in surface waters or wetlands."9 On the other hand, "filling" is defined in Section 373.403(14), Florida Statutes, as "the deposition, by any means, of materials in surface waters or wetlands." On this issue, the evidence shows that Respondent used a tracked vehicle to remove, scrape, and/or push soils from the wetlands to create the pond-like area and then deposited those materials in other wetlands around the sides of the pond to create the side casting. This activity constituted dredging and filling, as defined above. The remaining arguments of Respondent have been carefully considered and rejected. The preponderance of the evidence supports a finding that Respondent engaged in dredging and filling in wetlands without a permit, as alleged in the Notice, and that the charges have been sustained. Mitigation In its Proposed Final Order, the Department contends that Respondent presented no mitigation and therefore the administrative penalties should not be reduced. Mitigating circumstances include, among other things, "good faith efforts [by the violator] to comply prior to or after discovery of the violations by the department." § 403.121(10), Fla. Stat. After the area was dredged and filled, Respondent replanted some trees and plants while landscaping his back yard. Also, prior to hearing, he engaged the services of two experts to prepare an evaluation of the charges in the Notice, inspect the property, and submit suggested corrective actions for restoring the impacted area to its original condition. Although the two experts did not appear at hearing, they did render reports which contained proposed corrective actions, and their work should arguably be construed as a good faith effort by Respondent to comply with the Department's requirement that the property be restored to its original condition. Corrective Actions The Department has proposed extremely lengthy and detailed corrective actions which are contained in paragraphs 17 through 31 of the Notice and are designed to restore the property to its original condition. (Presumably, these are standard corrective actions imposed in cases such as this for restoring dredged and filled wetlands.) At hearing, Mr. Brown described the nature and purpose of these conditions, which can generally be summarized as (a) requiring that the entire 1.43-acre area be filled and/or regraded to its original contour elevation so that the replanting efforts will be successful, and (b) requiring a rigorous replanting and five-year monitoring schedule. Paragraphs 17 through 31 are set forth below: Respondents [sic] shall forthwith comply with all Department rules regarding dredging and filling within a surface water or wetland. Respondent shall correct and redress all violations in the time periods required below and shall comply with all applicable rules in Fla. Admin. Code Chapter 62-343 and 62-340. Within 30 days of the effective date of this Notice of Violation, the Respondent shall attend a pre-construction conference with a representative of the Department's Environmental Resources staff to review the work authorized by this Notice of Violation. Prior to the commencement of any earthmoving authorized in this Notice of Violation, the Respondent shall properly install and maintain Erosion and Sedimentation Control devices around the impacted area to prevent siltation and turbid discharge in to adjacent wetlands and surface waters (See Figure 2 attached hereto and incorporated herein). The Erosion and Sedimentation Control devices (i.e. staked silt screen) shall be installed no further than one-foot from the toe of the impacted area and shall remain in place until the restoration actions are completed to the Department's satisfaction. The Respondent shall re-grade the approximate 1.43 acres of impacted wetland to a grade consistent with the adjacent, unaltered wetlands, as illustrated in Figures 1 and 2 attached hereto and incorporated herein. (a) Only fill material excavated from the impacted area shall be used in the restoration of the site. If it is determined that there is an insufficient amount of the fill to obtain the required grade, the Respondent shall cease all work and notify the Department so an alternative restoration plan can be developed, if necessary. During and after re-grading, Respondent shall stabilize all side slopes as soon as possible to prevent erosion, siltation, or turbid run-off into waters of the State, but, in any event, no later than 72 hours after attaining final grade. Any re-grading or filling of the restoration areas shall be conducted so as not to affect wetlands and surface waters outside the restoration area. Within 30 days of completing the requirements outlined in paragraph 20 above and prior to planting, the Respondent shall submit a certified topographic survey of the 1.43 acres of restored wetlands to the Department for review and approval. The Department shall notify the Respondent if the re-grading is acceptable and whether the re- grading is at the correct elevation to ensure that the restoration area will function as a wetland as defined in Chapter 62-340, Florida Administrative Codes (sic). If the re- grading is unacceptable to the Department, Respondent shall have 21 days in which to correct the problems identified by the Department and shall submit a new survey upon completion of the required work. The survey shall include the following information for the restoration area: The boundary lines of the Respondent's property. Restoration area on the Respondent's Property (in total square footage or acres of restored wetlands)[.] Topographic survey of the restoration area completed by a certified land surveyor. The survey shall illustrate one-foot interval on 25 foot transects throughout the restoration area. The transects shall commence and terminate 30 feet beyond the limits of the restoration area. Once grading has been approved by the Department, the Respondent shall plant 270 of the following species in any combination throughout the 1.43-acres of restored wetlands: Swamp Tupelo (Nyssa syvatica), Red Maples (Acer rubrum), American Elm (Ulmus Americana L.), Swamp Dogwood (Cornus amomum Mill.), [and] Dahoon Holly (Ilex cassine L.). The tree species shall be planted on 15 foot- centers throughout the restoration area and shall be 3-gallon, well-rooted, nursery grown stock. Within 30 days of completion of the planting outlined in paragraph 24 above, the Respondent shall submit a "Time Zero" Monitoring Report, which includes the following information: Respondent's name, address, and OGC Case number; Date the Corrective Actions were completed; Enough color photographs to accurately depict the completion of the wetland restoration actions outlined in paragraphs 20 through 24 above. The photographs shall be taken from fixed reference points shown on a plan-view drawing; Nursery receipts for all plants used in the Restoration Action; Number, size and spacing of each species planted; and Description of any exotic vegetation removal or control conducted to date including the acreage of exotic vegetation removal and how vegetation removal or control was conducted. Subsequent monitoring reports shall be submitted for a period of 5 years following completion of the Corrective Actions: semi- annually for the first year and annually for year two through five. The purpose of the monitoring shall be to determine the "success of the restoration." The monitoring reports shall include the following information: Respondent's name, address, and OGC Case number; Date the inspection was completed; Color photographs taken from the same fixed reference points previously established during the Time-Zero monitoring report so Department personnel can observe the current site conditions and evaluate the success of the restoration plan; The percentage of each planted tree species within the restoration area that has survived; The average height of the planted tree species; The percent canopy cover by planted tree species within the restoration area; a tree shall be defined as a woody species that has a diameter at breast height (DBH) of at least 1.5 inches and a vertical height of 10 feet as measured from the substrate; The percent cover within the restoration area by planted and naturally recruiting native, "non-nuisance," wetland species, as defined in Chapter 62-340, Florida Administrative Code; The percent cover of Brazilian Pepper (Schinus terebinthifolius), Water Primrose (Ludwigia peruviana) and other nuisance species including those species listed or not listed in Chapter 62-340, Florida Administrative Code; and A written summary describing the success of the restoration area including steps needed and/or taken to promote future success such as replanting and/or nuisance or exotic species removal. Description should also include water levels observed within the restoration area. "Success of the Restoration" means at the end of the monitoring schedule the following success criteria are met in the restoration area: The total percent cover within the restoration area by native wetland vegetation exceeds 85 percent; Average height of the planted tree species exceeds 10-feet; The total percent canopy cover by planted and naturally recruited native wetland trees exceeds 30 percent; The total contribution to percent cover by nuisance, non-wetland or species not listed in Rule 62-340, Florida Administrative Code is less than 10 percent; and The Department has inspected the restoration area and the Department has informed the Respondent in writing that the restoration area meets the definition of a wetland as defined in Rule 62-340.200, Florida Administrative Code. If it is determined by the Department, based on visual inspection and/or review of the monitoring reports, that the restoration area is not meeting the above specified success criteria, an alternative Restoration Plan shall be submitted to the Southwest District Office and shall meet the following requirements: Shall submit the plan within 30 days of notification by the Department of failure to meet the success criteria. Shall implement the alternative plan no later than 90 days after receiving Department approval. Shall restart monitoring and maintenance program. Should the property be sold during the monitoring period, the Respondent shall remain responsible for the monitoring and notify the new owners of the Respondent's obligation to continue the monitoring and maintenance until the Department has determined that the success criteria has been met. The Respondent shall notify the new owner(s) of this in writing and shall provide the Department with a copy of the notification document within 15 days of the sale of the property. Prior to the submittal of each required monitoring report, the Respondent shall remove all exotic and nuisance vegetation from the restored wetland area. Nuisance and exotic vegetation removal shall include but not be limited to Brazilian Pepper (Schinus terebinthifolius) and Water Primrose (Ludwigia peruviana). All exotic vegetation shall be removed from the restoration area using hand-held equipment in a manner that will minimize impacts to the existing wetland plants and will not cause ruts in the wetland soils, which will impede or divert the flow of surface waters. More than any other aspect of this case, Respondent questions the nature and extent of the corrective actions being proposed by the Department on the ground they are too extensive, complex, and unnecessary and will cost tens of thousands of dollars. When asked to quantify or estimate the cost of the corrective actions, Mr. Brown could not. It is fair to infer, however, that the cost of the restoration work will be expensive and probably far exceed the amount of the proposed penalties. The two experts' reports, which are hearsay and cannot be used as a basis for a finding of fact, essentially corroborate Respondent's argument that the corrective actions may be onerous and too far-reaching. The difficulty, however, in evaluating Respondent's claim is that the record is limited to Mr. Brown's testimony justifying the conditions, the hearsay reports of the two experts, and a few exhibits tendered by Respondent. A precise description of the impacted area before the work was undertaken is not a part of the record at hearing. Therefore, the original condition is not known. Through the submission of exhibits and the questioning of Mr. Brown, Respondent contended that a natural depression existed in the area where the pond now sits, that he was merely leveling off the depression while removing dead trees and plants, and that very little soil was actually removed from the pond area. Given these circumstances, he contends that there are insufficient fill materials on site to bring the pond to grade. In his Exhibit 3, Respondent estimates that just to fill the pond area and bring it to the grade of the surrounding land, he would be required to haul in approximately 4,200 cubic yards of sand or fill material. Also, Respondent's Exhibit 2.c. purports to be a copy of an elevation survey of the property containing elevations at different points on the property. The handwritten numbers on the exhibit, which Respondent represents were taken from a certified survey (which is not otherwise identified), reflect the property (presumably before the work was undertaken) gradually sloping from a higher elevation on the southern boundary (around 67 feet) to the road on the northern boundary (around 66 feet), with a lower elevation of around 64 feet in the middle of the parcel, indicating a slightly lower elevation in the middle of the property. Also, a part of the property lies within the FEMA 100- year flood zone. Thus, it is fair to infer that the pond area replaced an area with a slight depression and on which water would accumulate during heavy storm events. This circumstance would logically reduce the amount of fill necessary to restore the pond area to its original contour elevation. Therefore, in implementing the corrective actions, the Department should give consideration, in the manner it deems appropriate, to the fact that the area contained a natural depression before the illicit activities occurred. The evidence supports a finding that the proposed corrective actions, although extensive and costly, should be approved. To the extent Respondent has replanted the impacted area with trees and plants that fit within the Department's restoration scheme, he should also be credited for this work. Reasonable costs and expenses The Department established at hearing that its Tampa District Office employees incurred expenses of more than $500.00 while investigating this matter. This is based upon the number of hours devoted to the case times the hourly salary rate of the employees. Therefore, the Department is entitled to be reimbursed in the amount of $500.00 for reasonable investigative expenses and costs. Respondent has not disputed the amount of time expended by the employees or their hourly compensation but contends in his Proposed Recommended Order that the matter could have been cleared up by a "simple phone call and a few minutes of effort." Respondent's argument is hereby rejected.
Findings Of Fact The Department of Environmental Protection is the state agency responsible for permitting involving water quality and the dredging and filling of wetlands as defined in Chapter 403, Florida Statutes. Petitioner, Stephen J. Dibbs, owns 20.03 acres of land located at the southeast corner of the intersection of Dale Mabry Highway with Hoedt Road, north of Tampa in Hillsborough County, Florida. The property consists of 11.27 acres of non-jurisdictional uplands and 8.76 acres of forested jurisdictional wetlands which divide the property somewhat diagonally in a northwest to southeast direction. There are uplands along the entire western boundary of the property along Dale Mabry Highway and Zambito Road, as well as in the southwestern portion of the property. The property is surrounded by commercial, residential and multifamily development and is zoned by Hillsborough County for commercial use. The deeper portions of the wetlands area are dominated by cypress trees and the transitional wetlands areas include laurel oak, American elm, red maple and dahoon holly. These wetlands currently provide habitat for fish and other wildlife and provide for water storage and treatment. This is a high quality forested wetlands which performs the valuable wetlands functions outlined above. It is subject to the Department's permitting procedures. Mr. Dibbs purchased the property in 1989 knowing at the time of purchase that jurisdictional wetlands were located thereon as defined by a previously conducted Departmental jurisdiction determination. He also knew that at the time of purchase there was no vehicular access/egress to the property via Hoedt Road. On April 26, 1994, Mr. Dibbs submitted a revision to his previously submitted application No. 292103383 for a permit to fill a portion of the wetlands on his property described above. Thereafter, on August 19, 1994, the Department issued its Intent to deny the requested permit and on August 31, 1994, Mr. Dibbs filed a timely Petition to contest the agency action. The parties agree, and it is found, that: The subject project does not occur within an Outstanding Florida Water. The project will not negatively impact any threatened or endangered species. The project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The project will not adversely affect significant historical and archaeological resources, Mr. Dibbs proposes to fill 2.014 acres of wetlands located at the western end of his property. The impacts to this filled parcel will be permanent in nature. The project, as originally envisioned in the March, 1992 application by Mr. Dibbs, called for the filling of approximately 4 acres of wetlands for a large commercial development and a "Par 3" golf course. In the permitting process, the Department must first determine if the project is in the public interest, and the cumulative impact of the proposed project is a part of that public interest determination. Efforts at minimization of the proposed project's impact on the wetlands are made at that time and the applicant's proposal for mitigation cannot be considered until he has established he cannot otherwise meet the statutory standards by minimizing the proposed impacts to wetlands by avoiding them or by reducing the amount of wetlands area impacted. In the course of negotiations with and at the request of the Department, Mr. Dibbs modified the project to eliminate the golf course and reduce the size of the commercial development, which resulted in a decrease in the amount of fill from approximately 4 acres to the presently sought 2.014 acres. As a part of the permitting process, and in support of mitigation efforts, the Department suggested five modifications to Mr. Dibbs which it felt would make the project permittable. These were: Further minimization of wetlands impacts by a re-orientation of buildings, roads and parking areas/spaces or a reduction in the number of commercial sites to allow the remaining operations to be better fitted into available uplands with less spill-over into wetlands. Limitation of impact to the fringe areas of the wetlands rather than the interior. Investigating the feasibility of moving the Pier One Import or any other facility back from Dale Mabry and turning Chick-Fil-A and China Coast sideways to lesser their direct impacts. Maintain the concept of vertical retaining wall use along the wetlands construction line as proposed. Mitigate for the reduced wetlands encroach- ments at a creation ratio of 1.5:1 with tree spade transplants at 15 foot centers, interplanted with 3 gallon or larger pot plants to create a 10'X10' overall plant spacing, and the dedication of the mitigation area and all remaining wetlands to the Department in a perpetual conservation easement. Of these proposals, the vertical retaining wall, (4), and the submission of a mitigation plan, (5), were part of Petitioner's April, 1994 modification. There remains, however, some resistance to the dedication of the wetlands and mitigation area by a perpetual easement. The Department admits that the turning of the Chick-Fil-A and China Coast facilities sideways is not practicable. Since the remaining suggestions essentially involve eliminating two of the four commercial sites, Mr. Dibbs, determining that such action would render the development economically infeasible, rejected those suggestions. The Department suggested modifications to the Dibbs project which limited the wetlands fill to approximately 0.5 to 0.7 acres by having only two restaurants with a truck access from Hoedt Road. While there is an issue as to the economic viability of the Department's suggestion, that suggestion is practicable from an engineering standpoint, notwithstanding the opinion of Mr. Mai, Petitioner's expert. It would also meet both the parking requirements of the Hillsborough County Land Development Code and the corporate requirements of General Mills, the owner of such mid-priced sit-down restaurants as Olive Garden and China Coast, as proposed here. Nonetheless, after Petitioner's initial application was filed in 1992, consistent with the Department's mitigation suggestions, Mr. Dibbs did make certain modifications to the proposed project in an effort to minimize its impact on the environment. This accounted for the elimination of the previously considered miniature golf course and a reduction in size of the development which reduced the required amount of fill from 4 acres to 2.014 acres. The project, as described in the current application under consideration, is what Petitioner considers the smallest the project can be made and still be economically feasible. As presently envisioned by Petitioner, the development project will encompass approximately 8 acres and will include four (4) freestanding commercial facilities, including two sit-down restaurants, an Olive Garden Restaurant and a China Coast Restaurant; a fast food restaurant, Chick-Fil-A; and a retail facility, Pier One Imports, all along the western boundary of the property fronting Dale Mabry Highway and Zambito Road. The Chick-Fil-A would be located in the northwest corner of the development almost entirely on what is presently forested wetlands. The Pier One Imports store would be on what is presently forested wetlands, south of the Chick-Fil-A and north of the China Coast restaurant which, itself, would involve some impacts to forested wetlands. The Olive Garden restaurant would be located on the southwest corner of the property south of the China Coast. It is the only building in the proposed development which would not involve some wetlands impact. Due to the length of time involved so far in obtaining permits for the development, both Pier One and General Mills, the parent for China Coast and Olive Garden, have withdrawn their agreements with Mr. Dibbs to utilize his property though they remain interested in them. At one point, General Mills offered Petitioner $1.6 million for the Olive Garden and China Coast properties. Mr. Dibbs has entered discussions with other prospective tenants but all have space requirements similar to those envisioned in the present planned development. He has found, generally, a greater demand for space than there are sites available. These space requirements convince him that the minimum encroachment that would satisfy his development plans is the 2.014 acres proposed. Any further reduction in encroachment would result in a need to change the development proposal which, Mr. Dibbs claims, would negate the economic viability of the development. In order for minimization to be effective and not inappropriate, it must result in the applicant still having a project which is economically viable. Economic viability means that the estimated value of the project as completed under minimization would be equal to or exceed its estimated cost. The Department's evidence tends to indicate that a project limited to an Olive Garden restaurant and a China Coast restaurant would be economically viable. Further, the Department contends that same evidence indicates that a commercial project limited to the two out parcels, at the southern portion of the project site would also be economically viable and profitable, if not as profitable as Petitioner originally anticipated. That contention has not been shown to be so. Dr. William C. Weaver, Barnett Professor of real estate and business valuation at the University of Florida and a forensic economist, utilizing figures provided by Petitioner, by deposition indicated that Petitioner had, as of the date of the testimony, incurred development costs totaling $746,000. Weaver also estimated that fill costs for the project as modified would be an additional $100,000. Wetlands replacement and monitoring, (mitigation) would cost an additional $100,000, and the cost of obtaining access to Hoedt Road would be an additional $100,000. For the purposes of calculating a rate of return, Dr. Weaver assumed the development would be limited to the two parcels on the southern portion of the site, with access to Hoedt Road down the length of the site in some manner. These sites, he concluded, have a present value of $850,000 even though not all costs have as yet been incurred. Future development of the two parcels would, in Weaver's estimation, result in a value for the project of $1.6 million. The rate of return, then, with a present value of $850,000 and a future value of $1.6 million, would be approximately 9.5 percent to 10 percent. If an additional sum of $200,000 for fill and mitigation is figured in, Dr. Weaver opines the Petitioner's rate of return would still be in the 9.5 percent to 10 percent range. Accepting Dr. Weaver's analysis and the cost estimates on which it is based, for the purpose of argument, then the project, modified as proposed by the Department, would be profitable. It should be noted here that the cost figures utilized by Dr. Weaver in his calculation were those provided by Petitioner. There is a high demand for commercial property in the vicinity of Petitioner's proposed project. Petitioner's site is one of the few remaining undeveloped parcels in the north Dale Mabry corridor, a high per capita income area which constitutes a market area encompassing a three to five mile radius from the property. Even with Pier One and General Mills pulling out, there is evidence that another restaurant chain, Golden Corral, has offered to construct a restaurant on the southern portion of the property. The western edge of the property, for the most part, abuts Dale Mabry Highway with the exception of a small section to the south which abuts Zambito Road. Zambito Road, a two-lane, county maintained, road extends northward from Ehrlich Road to a point where it merges with the northbound lanes of Dale Mabry Highway, at that point a twelve lane divided state highway. Vehicular access and egress to and from the proposed project would be, in part, via Zambito Road. Northbound traffic on Dale Mabry could enter the project by turning right, an access presently approved by the Department of Transportation. As presently designed and approved, however, the Dale Mabry entrance would be a narrow and difficult access for service vehicles. Patrons could exit the project into the northbound lane of Dale Mabry only by a right hand turn, and only if a change in permitting by the Department of Transportation would allow access onto Dale Mabry. That access would not involve any wetlands impact and this proposal is the subject of a current application to the Florida Department of Transportation on which administrative hearing is currently pending. If and when approved, any access or egress from or to Dale Mabry, calls for a fifty foot turning radius. Another source of access to and egress from the project can be via Hoedt Road, a two lane road maintained by the county, which runs east and west north of Petitioner's property line and to which Petitioner currently has no legal right to vehicular access. The intersection of Hoedt Road and Dale Mabry Highway is controlled by a signal light and is located to the north of the northwest corner of the proposed development. Petitioner expects to purchase rights to vehicular access to his development from Hoedt Road from the owner of the narrow strip which runs between the road and the northern boundary of the property. The proposed access-egress point would be located along the northern property line approximately 230 feet due east of the Hoedt/Dale Mabry intersection. Through this access, a customer traveling north on Dale Mabry could enter the development by turning right onto Hoedt Road while a customer travelling south on Dale Mabry would do so by turning left, (east), onto Hoedt Road. In both cases, the customer would then turn right, (south), into the development. A customer leaving the development via the northern access would turn either north or south onto Dale Mabry at its intersection with Hoedt Road. The Hoedt Road access point would be the primary means of access-egress for semi-trailers/commercial vehicles servicing the businesses in the development. The existing site plan provides for these vehicles to proceed directly behind the buildings for service. A third access-egress point exists or could exist off of Zambito Road at the southwest corner of the property. A customer northbound on Zambito Road could make a right turn into the proposed development or could exit the development by turning either left or right onto Zambito, the former heading south on Zambito and the latter travelling north a short distance to where Zambito joins with Dale Mabry. This access could, with modification of the development plan, allow a semi-trailer to enter and exit the site from onto Zambito Road to provide service to the businesses situated on the site. Mr. Dibbs finds this an unacceptable arrangement, however. He claims the Zambito Road entrance is a difficult intersection since it is not served by a traffic signal. As currently designed, the existing plan calls for a total of 430 parking spaces while the county only requires a minimum of 344 spaces for the four businesses. The parking scheme as proposed was considered necessary to meet the requirements expressed by Mr. Dibbs' proposed tenants. It is likely that other, substitute, tenants would have similar parking requirements. The Department has proposed a modification to Petitioner's development plan which would eliminate approximately 30 parking spaces proposed. This would still provide a number of parking spaces sufficient to meet both the county's minimum requirements and the reasonable requirements of proposed tenants. The Department has suggested that access to the development by commercial vehicles be by the Hoedt Road entrance. It would modify the access road in such a way that it would "snake" around the existing wetlands. This would, however, result in a commingling of semi trucks, smaller delivery vehicle, and customer vehicles within the interior of the development and this would not be desirable either from a safety or a business standpoint. Ease of access, as opposed to mere access, has, in the past, been considered by the Department as a valid evaluator of practicability. For this reason, and based on many of the access considerations mentioned above, Petitioner's engineering expert, Mr. Mai, considered that access from Hoedt Road must, of necessity, be straight in to the back of the buildings, and, assuming there are to be the four buildings as proposed, this position is unrebutted by the Department. Elimination of the Hoedt Road access would be impractical. Another factor to be considered on the issue of the economic practicability of minimization is that of visibility. Commercial enterprises generally must be visible to draw customers so as to be economically viable. Dale Mabry Highway is a high volume thoroughfare. The businesses on the development, medium price sit-down restaurants and an import store, all of a chain variety, cater not only to a destination oriented clientele but also to a spontaneous clientele as well. It is imperative, therefore, that these businesses be able to be seen from Dale Mabry. Petitioner claims that the elimination of the two northern commercial sites as a part of minimization would adversely affect the visibility of the two remaining sites. First, he claims, the cypress stand in the northwest portion of the wetlands would interfere with the vision of those coming down from the north. He also asserts that potential customers proceeding in a southerly direction on Dale Mabry would not be able to see the remaining businesses in enough time to make an entrance choice at Hoedt Road. They would, therefore, have to proceed south on Dale Mabry for a significant distance to the next signal, turn east and proceed to Zambito Road, and turn north again to come up Zambito Road to either an access point on the far south end of the property or to the turn right off the northbound lane of Dale Mabry. Taken together, these factors and the reduction in the number of businesses on the development site would discourage customer use, and in the opinion of Petitioner's economist and development consultant, would result in the two remaining businesses not surviving more than one year. This point appears well taken. The Department has also suggested that Petitioner replace pavement parking at the site with grassed parking; grade the landscape strips and parking medians for storm water treatment; utilize porous concrete for parking; utilize vertical as opposed to sloped retaining walls: and provide mitigation at a 1.5:1 ratio. The use of grassed parking was rejected on the basis of a safety hazard to women wearing high heeled shoes. The other suggestions were accepted by Petitioner. Some consideration was given to the fact that the property owned by Mr. Dibbs at this site includes 5.12 acres of uplands at the northeast corner of the property of which at least one acre would be needed for the proposed use as the mitigation area. The northern property line runs almost due east 1309.04 feet. The most westward point of the northeast uplands crosses the northern property line just about half way back from Dale Mabry Highway. The uplands in question is currently zoned for one single family home per acre but if re-zoned might provide for two homes per acre. The surrounding land use, however, makes re-zoning unlikely. In addition, access to that property is unavailable unless a road were to be built across the wetlands from Dale Mabry. The cost of this road construction, the additional land needed for mitigation of the wetlands used for the road, and the cost of development infrastructure would make it impracticable to use the back uplands for anything. The term "economic justification" as construed by the Department includes the access, visibility and parking consideration previously discussed in addition to other regulatory requirements and like issues. The Department has taken the position that any type of economic return on investment or cost benefit analysis is not an appropriate consideration in a permitting decision. Petitioner contends that the additional minimization suggestions proposed by the Department, when considered in the context of engineering, safety, design and development, and the minimal potentiality for continued viability of any business located on the property encumbered by those suggestions, are not practicable. The failure of the Department to consult with its staff economist regarding this project, and the paucity of demonstrated departmental familiarity or experience with economics, at least among permitting personnel, may lend some credence to this argument. The Department has, until now, followed a policy of consistency in treating applications similar to the instant application. Generally, requests for minimization include such items as vertical retaining walls, use of porous concrete, bridges, culverts and other matters, all of which fall short of requiring actual redesign of the proposed project. In the instant case, the Department proposes the elimination of approximately 50 percent of the project as minimization before considering mitigation. Turning to the issue of mitigation, notwithstanding the predictions of success by Petitioner, it appears that only the smallest part of any mitigation attempted is successful in the long run, and that for the most part, wetlands lost through dredging and filling is not replaced. Nonetheless, the parties, including the Department, continue to work within the fiction that mitigation can compensate for the destruction of existing wetlands when an applicant is otherwise unable to meet the criteria set forth in the statute. There can be little doubt that this project, as applied for, may adversely affect habitat and their wetlands functions of storm water attenuation, treatment and storage. It is of a permanent nature. The purpose of mitigation is to offset the impact of development. Whereas here the Department has indicated that only 3.021 acres of mitigation wetlands need be created to offset the 2.014 acres of wetlands destroyed, a 1.5:1 ratio, Petitioner proposed to create 4.49 acres of new wetlands, a 2.25:1 ratio without the suggested conservation easement. The proposal submitted by Petitioner, he believes, will be successful. This remains to be seen and success is not at all guaranteed. Presuming success, however, for the sake of discussion, the mitigation site will be directly adjacent to and contiguous to existing wetlands and immediately will be come a part of and subject to Department wetlands regulatory jurisdiction. If successful, the proposed mitigation would offset the adverse impacts of the project. Still another area for consideration is that concerning storm water runoff. Storm water is currently collected from Dale Mabry Highway and drains into a ditch paralleling Petitioner's highway frontage. From there, the water ultimately flows into the wetlands on his property. The current Department of Transportation system affords no treatment to the storm water before it is released onto the Petitioner's property. This storm water can reasonably be expected to contain oils, greases and other contaminants. Petitioner has proposed to include in his project a system designed to treat this highway runoff and improve its quality before it is released into the waters of the state. This system will treat the water by percolate, removing approximately 80 percent of the pollutants. In addition to treating and improving storm water runoff, the system proposed by Mr. Dibbs should provide a higher degree of water storage than currently exists for a net improvement to the environment over existing conditions. Taken together, Petitioner contends the above matters indicate there will be no adverse cumulative impacts resulting from the granting of the permit. There is some indication that the higher mitigation ratio offered by Petitioner could become a precedent for other similar projects. If that were to be the case, the resulting cumulative impact would be a positive rather than negative factor. Nonetheless, it is clear that future applications must stand on their own merit and independently stand the scrutiny of the cumulative impact test, as must the instant application. Turning to the conservation easement suggested by the Department as a condition of approval, the agency contends such an easement would allow it to reduce its requirement for mitigation from a 1.5:1 ratio to a 1:1 ratio. The Department has held in the past, it is suggested, that an applicant's agreement to provide more than the minimum acceptable mitigation can justify the lack of an easement. Mr. Dibbs contends here, and it would so appear, that his agreement to provide more than the required amount of mitigation, when coupled with the fact that the mitigated area will be a part of the Department's wetlands permitting jurisdiction, obviates any need to provide a conservation easement either to offset any adverse impact or to protect against adverse cumulative impact of the project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Permit No. 292103383, to dredge and fill 2.014 acres of jurisdictional wetlands in Hillsborough County, Florida be issued to Petitioner herein, Stephen J. Dibbs, subject to mitigation herein at a rate of no less than 1.5:1 and under such lawful and pertinent conditions as may be specified by the Department. RECOMMENDED this 20th day of February, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. & 6. Accepted and incorporated herein. 7. - 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. 14. Accepted and incorporated herein. 15. Accepted and incorporated herein. 16. - 18. Accepted and incorporated herein. 19. Accepted and incorporated herein. 20. Accepted and incorporated herein. First two sentences accepted. Balance is restatement of testimony. & 23. Accepted. Not a Finding of Fact but more a comment on the evidence. 25. & 26. Accepted and incorporated herein. 27. Accepted. 28. & 29. Accepted and incorporated herein. 30. Not a Finding of Fact but a comment on the evidence. 31. & 32. Accepted. 33. Accepted and incorporated herein. 34. - 36. Accepted. 37. Accepted. 38. - 40. Accepted and incorporated herein. 41. More a Conclusion of Law than a Finding of Fact. 42. Accepted and incorporated herein. 43. - 45. Accepted. 46. Accepted and incorporated herein. 47. More a Conclusion of Law than a Finding of Fact. 48. & 49. Accepted and incorporated herein. 50. - 53. Accepted and incorporated herein. 54. More a Conclusion of Law than a Finding of Fact. 55. - 57. Accepted. 58. Accepted and incorporated herein. 59. More a Conclusion of Law than a Finding of Fact. 60. & 61. Accepted but redundant. 62. Not a Finding of fact but a Conclusion of Law. 63. - 65. Accepted but redundant. 66. Accepted and incorporated herein. 67. - 69. Accepted. 70. - 74. Accepted. 75. - 81. Accepted and incorporated herein in substance. 82. & 83. Accepted. 84. - 88. Accepted. FOR THE RESPONDENT: 1. - 9. Accepted and incorporated herein. 10. & 11. Accepted and incorporated herein. 12. - 15. Accepted. 16. - 18. Accepted and incorporated herein. 19. - 26. Accepted and incorporated herein. 27. - 30. Accepted and incorporated herein. 31. - 34. Accepted and incorporated herein. 35. - 39. Accepted. 40. - 48. Accepted and incorporated herein. 49. & 50. Accepted and incorporated herein. 51. & 52. Accepted. 53. - 60. Accepted. 61. - 64. Accepted and incorporated herein. 65. Rejected as contra to the better evidence. 66. - 69. Accepted and incorporated herein. 70. Rejected as contra to the better evidence. 71. & 72. Accepted. 73. - 75. Accepted. 76. - 81. Accepted. 82. - 87. Accepted 88. Accepted and incorporated herein. 89. & 90. Accepted and incorporated herein. 91. & 92. Rejected as contra to the better evidence. 93. Accepted and incorporated herein. 94. - 96. Accepted and incorporated herein. 97. & 98. Accepted. 99. Accepted and incorporated herein. 100. & 101. 102. Rejected. Accepted as Department's definition. 103. Not proven. 104. - 106. Not relevant to ultimate issue. 107. 120. - - 119. 124. Not a proper Finding of Fact but a restatement the testimony of a witness. Accepted as stipulated facts. of FOR THE INTERVENOR: Noted. Accepted. - 9. Accepted. - 14. Accepted. Not a proper Finding of Fact but a conclusion as to the legal sufficiency of the evidence. - 21. Accepted as statements of the Department's non-Rule policy. 22. - 24. Accepted and incorporated herein. 25. Accepted. 26. Accepted. 27. & 28. Accepted. 29. Rejected. 30. & 31. Accepted. 32. Accepted. 33. Rejected. 34. Accepted. 35. Not proven. Accepted. Accepted. & 39. Rejected. Accepted as the witness' opinion. Accepted. - 45. Accepted and incorporated herein. 46. Accepted. COPIES FURNISHED: E. Gary Early, Esquire Akerman, Senterfitt & Eidson, P.A. 216 South Monroe Street, Suite 200 P.O. Box 10555 Tallahassee, Florida 32302-2555 John W. Wilcox, Esquire Akerman, Senterfitt & Eidson, P.A. Post Office Box 3273 Tampa, Florida 33601-3273 W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712 Virigina B. Wetherell Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether St. Johns County Comprehensive Plan Policies E.2.2.5, E.2.2.10, E.2.2.13, E.2.2.17, and D.2.3.4 adopted by Ordinance No. 2003-31 on March 25, 2003, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's current Plan was adopted in 1990. At that time, the County adopted a minimum buffer between wetlands and "natural drainage courses" of 25 feet. During the preparation of its Evaluation Appraisal Report (an update to the Plan) in 1999, the County directed its staff to initiate a study of wetlands and upland buffers. After a Request for Proposals was issued, the County eventually contracted with Jones, Edmunds & Associates (JEA) to prepare a study of the available science concerning upland buffers and develop a wetland buffer plan which would protect environmentally sensitive lands from development activities. In conducting this study, JEA relied upon its own personnel, County staff, and outside consultants. In August 1999, JEA completed and submitted to the County a "Background Report in Support of Development of Wetland Buffer Zone Ordinance" (Background Report). In January 2000, JEA completed and submitted to the County a final report entitled "Calculating Buffer Zone Widths for Protection of Wetlands and Other Environmentally Sensitive Lands in St. Johns County" (Final Report). The Final Report generally provided a methodology for calculating buffer widths based on vegetation and groundwater drawdown and recommended that the County adopt a 300-foot buffer around all wetlands in the County. In response to the Final Report, on May 10, 2000, the County adopted various amendments to its wetland buffer provisions, including a new Policy E.2.2.5(a)(1)(c) which required that it adopt Land Development Regulations (LDRs) pertaining to wetlands within two years "after completion of the consultant's wetland buffer study," or by January 2002. In February 2000, the County also created a volunteer working group (Working Group) made up of County staff, biologists, environmental scientists, and representatives of environmental organizations and landowners, to review data and analysis related to wetland buffers, including the JEA Final Report. That group held at least nineteen meetings between February 2000 and May 2001, and it analyzed scientific and technical data and expert testimony from various federal and state agencies. On July 24, 2001, the County staff recommended that the County adopt new LDRs which identified upland buffer zones and required wetland buffers ranging from 50 to 150 feet, depending on the sensitivity of the area; however, this recommendation was rejected by a 3-2 vote. When the County failed to adopt new wetland buffer regulations within the two year period, as required by the Plan, on June 11, 2002, Petitioners filed a complaint with the Department under Section 163.3202, Florida Statutes (2001), seeking enforcement of Policy E.2.2.5(a)(1)(c). After the Department made a determination that the County had failed to amend its LDRs, as required by the Plan, on October 16, 2002, the County submitted to the Department for its compliance review a package of proposed amendments, including amendments to Policies E.2.2.5, E.2.2.10, E.2.2.13, and E.2.2.17. On December 20, 2002, the Department issued its Objections, Recommendations, and Comments Report (ORC), which raised objections to Policies E.2.2.5, E.2.2.10, and E.2.2.13. More specifically, the ORC raised the following two issues: The amendments establishing averaging of buffers do not provide a predictable standard for buffering. In particular there is no minimum buffer width [Issue 1]. Additionally, the amendment is not supported by data and analysis demonstrating the proposed minimum and averaging is adequate to protect the resources referenced in the County. Therefore, the amendment has not demonstrated consistency with requirements to protect natural resources including upland habitat and wetlands [Issue 2]. In response to the ORC, on March 25, 2003, the County adopted Ordinance No. 2003-31, which made changes to Policies E.2.2.5 and D.3.2.4. The Ordinance also readopted (without further change) Policies E.2.2.10, E.2.2.13, and E.2.2.17, which had been previously submitted to the Department on October 16, 2002. Policies E.2.2.5, E.2.2.10, E.2.2.13, and E.2.2.17 are found in the Conservation/Coastal Management Element of the Plan while Policy D.3.2.4 is found in the Stormwater Management Sub-Element of the Infrastructure Element of the Plan. As noted above, while the County made further amendments to Policy E.2.2.5(a)(1)(a) and (b), which addressed the minimum buffer issue raised in the ORC, it did not make any changes (e.g., altering the width of the buffers) which addressed the issue of whether the buffers were adequate in size to protect the natural resources. Finally, for the purpose of providing "clarification and consistency" with other provisions within the Plan, the County also made minor modifications to Policy D.3.2.4. In very broad terms, Ordinance No. 2003-31 added a requirement that the LDRs address "wetland buffer averaging" and establish a variance procedure. It also deleted the requirement that the wetland buffer regulations be amended within two years after the completion of the consultant's study. On May 21, 2003, the Department published its Notice of Intent to Find Amendment in Compliance in a local newspaper. In making this determination, the Department concluded that it was legally prohibited by Section 163.3184(6)(c), Florida Statutes, from compelling the County to adopt larger upland buffers. That statute provides that when a state agency, here the St. Johns River Water Management District (District), has implemented a permitting program, "the [Department] shall not require a local government to duplicate or exceed that permitting program in its comprehensive plan." On June 3, 2003, Petitioners filed their Petition contending that the amendments were not in compliance for numerous reasons. As set forth in the parties' Pre-Hearing Stipulation, Petitioners contend that there was insufficient data and analyses to support the amendments in violation of Sections 163.3177(8) and (10)(e), Florida Statutes, and Florida Administrative Code Rules 9J-5.005(1)(c), (2)(a) and (b), 9J-5.006(2)(b) and (c), 9J-5.012(2), and 9J-5.013(1); that the amendment is not in compliance with Florida Administrative Code Rule 9J-5.013(2)(b)(4), (c)(5) and (6), and (3); that the amendment is not in compliance with Section 163.3177(6)(d), Florida Statutes; that the amendment to Policy E.2.2.10(b) is not in compliance because it is a self-amending policy; that the amendment to Policy E.2.2.5(a)(1) is not in compliance because it fails to provide a clear, predictable standard for variances; that the amendment is internally inconsistent with Future Land Use Element Goal A.1 and Objective A.1.1, Conservation Goal E.2, Objective E.2.2, and associated Policies E.2.2.4, E.2.2(c),3 E.2.2.8, E.2.2.9, E.2.2.10, E.2.2.17, and E.2.2.18; that the amendment is internally inconsistent with Conservation Objectives E.2.3 and E.2.8 and Policies E.2.3.7, E.2.8.7, and E.2.8.8; and that the amendment is inconsistent with the following portions of the State Comprehensive Plan: Section 187.201(8)(b)10. and 12., (10)(b)1., 3., and 7., and (26)(b)7., Florida Statutes. The Parties The County is the local government responsible for adopting a Plan and amendments thereto. FWF is a not-for-profit corporation whose purpose, according to its president, is "conservation and natural resources and education." FWF submitted objections to the County prior to the adoption of the challenged amendments. Although FWF's offices are located in Tallahassee, it currently has 173 members who reside within the County. FWF does not assert that it resides or owns property or a business within the County; however, FWF does contend that it has standing to participate in this proceeding on the theory that it operates a business within the County. Besides making comments, recommendations, and objections to local governments regarding growth management issues, the evidence shows that the organization (primarily if not wholly from its Tallahassee office) collects dues from its members; periodically sends members a newsletter providing information on conservation issues; organizes and takes field trips; issues press releases; occasionally makes presentations to the public; and provides information to the news media concerning conservation-related issues. The organization also has a web site with a "merchandise store," which sells merchandise (more than likely to members but also to the public) from its Tallahassee office. However, the sale of merchandise is only incidental to the primary purpose described above by its president. FWF does not maintain an office in the County; it does not have an occupational license to engage in a business; it has no employees in the County; it has no telephone listing in the County; it has not filed any tangible personal property tax returns or requested exemptions from the County Tax Collector; it holds no formal meetings within the County; and its president could not recall when or if merchandise was sold by the Tallahassee office (via the web site) to a County resident within the last 12 months. It is fair to find from the evidence that FWF does not operate a business within the County. FMI is a not-for-profit Florida corporation (created in 1997) whose principal address is 201 Owens Avenue, St. Augustine, Florida. (That address is also the address of a charter member, Patrick Hamilton.) FMI submitted objections to the County prior to the adoption of the challenged amendments. According to Mr. Hamilton, the purpose of the organization is to "preserve and protect the Matanzas River Basin [which runs north-south along the eastern part of the County] and the lands that affect it." The organization has members who reside within the County, although the exact number is not of record. Like FWF, FMI does not reside or own property or a business within the County; however, FMI contends that it is an affected person because it operates a business within the County. To substantiate this assertion, FMI presented evidence that it collects dues from its members; sends newsletters to its members; prepares and submits objections, recommendations, and comments to the County regarding growth management issues; hires attorneys and consultants to represent its interests in environmental and land use matters; provides educational information to local news media; has been involved in various projects over the years (such as seeking to have Highway A1A designated as a state scenic highway and providing input to the State on the purchase of lands for conservation purposes); takes occasional field trips; and conducts meetings within the County. FMI maintains a bank account but has no office. (When meetings are held, it generally uses the office or home of one of its members.) There is no evidence that FMI has a telephone listing, an occupational license to engage in any type of business, or any full or part-time employees. Even though FMI engages in a number of commendable activities, it is fair to infer from the evidence that FMI is not engaged in a "business" within the County, as that word is commonly understood. The parties have stipulated that DDI is a Florida corporation that owns property and operates a business in the County, and that it submitted oral and written comments to the County prior to the adoption of the plan amendments. These stipulated facts establish that DDI is an affected person within the meaning of Section 163.3184(1)(a), Florida Statutes. The Amendments Although a local government is not required by statute or rule to adopt buffers in a comprehensive plan, in the 1990 Plan, the County established a 25-foot buffer between developed areas and natural drainage courses as a protective measure for wetlands and other environmentally sensitive lands. The primary purpose of implementing wetland buffers is, of course, to protect water quality. When the Plan was updated in 2000, the County adopted its current regulation to provide a 50-foot upland buffer adjacent to the contiguous wetlands associated with the Guana, Tolomato, Matanzas, and St. Johns Rivers. For all other contiguous wetlands in the County, the Plan required a 25-foot buffer. The update also required that both the Plan and the LDRs be amended within two years after completion of the JEA's study of wetland buffers. There are three accepted strategies in comprehensive planning used by local governments for protecting wetlands. The first approach is a mapping strategy, where the local government performs an assessment of wetlands and environmentally sensitive lands and reflects those areas on a map. Alternatively, a local government may choose to rely on policies incorporated into the text of its comprehensive plan. Or, the local government may choose a combination of the first two strategies that would involve both mapping and policies to guide land uses for the wetland areas. The County's choice appears to be a combination of the first two strategies. In broad terms, the 2003 text amendments to Policies E.2.2.5(a)(1)(a) and (b), E.2.2.13(b), and D.3.2.4 relate to a system of "wetland buffers" as one of the County's strategies for protection of wetlands and other environmentally sensitive lands, while the amendments to Policies E.2.2.10 and E.2.2.17 relate to another proposed strategy, the use of Environmentally Sensitive Overlay Zone (ESOZ) regulations. More specifically, Policy E.2.2.5(a)(1), as amended, reads as follows: E.2.2.5. The County shall protect Environmentally Sensitive Lands (ESLs) through the establishment of Land Development Regulations (LDRs) which address the alternative types of protection for each type of Environmentally Sensitive Land. Adoption and implementation of the Land Development Regulations shall, at a minimum, address the following issues: For Wetlands, Outstanding Florida Waters (OFW), and Estuaries: establish and maintain buffers between the wetlands/OFW/estuaries and upland development as stated in the County's Land Development Regulations (LDRs), and as follows: A minimum natural vegetative upland buffer of 25 f[ee]t shall be required and maintained between the developed areas and the contiguous wetlands to protect the water quality of the wetlands, except where buffer averaging may allow less than the required minimum of 25 feet in certain locations while achieving a greater buffer width or where a variance is granted. Except where a variance is granted, no buffer shall be reduced to less than 10 feet except in circumstances where an unavoidable wetland impact occurs such as but not limited to a road crossing. Such wetland buffer shall be measured from the jurisdictional wetland line as determined by the SJRWMD and FDEP. [A] minimum of a 50 f[oo]t natural vegetative upland buffer shall be required and maintained between the development area and the St. Johns, Matanzas, Guana and Tolomato Rivers and their associated tributaries, streams, and other interconnecting water bodies, except where buffer averaging may allow less than the required minimum 50 feet in certain locations while achieving a greater buffer width or where a variance is granted. Except where a variance is granted, no buffer shall be reduced to less than 25 feet except in circumstances where an unavoidable wetland impact occurs such as but not limited to a road crossing. Such wetland buffer shall be measured from the jurisdictional wetland line as determined by the SJRWMD and FDEP. In addition, the County deleted subparagraph (a)(1)(c), which required that it adopt LDR wetland requirements within two years after completion of the consultant's wetland buffer study. As amended, Policy E.2.2.10(b) reads as follows: E.2.2.10. By December 2005 or sooner, the County shall develop and adopt guidelines and standards for the preservation and conservation of wetlands through various land development techniques including, but not limited to, the following: * * * (b) The County shall protect wetlands, uplands[,] and their associated wildlife habitats through the implementation of natural vegetative buffers, the preservation of Significant Natural Communities Habitat, and the protection of Listed Species within St. Johns County as provided in the County Land Development Regulations. The County also deleted reference in the Policy to an ESOZ ordinance and the requirement that it adopt ESOZ regulations within two years after the completion of the consultant's wetland buffer study. As amended, Policy E.2.2.13(a) reads as follows: By December 1999, the County shall develop and adopt guidelines and standards for the preservation and conservation of uplands through various land development techniques as follows: St. Johns County shall require a buffer zone adjacent to the wetlands and open water habitats on all new development sites as specified in the LDRs and [P]olicy E.2.2.5. In addition, the County deleted language which required that it adopt "new wetland buffer regulations" within two years after completion of the consultant's wetland buffer study. As amended, Policy E.2.2.17 reads in relevant part as follows E.2.2.17. By 2005 or sooner, the County shall consider adoption of an Environmentally Sensitive Overlay Zone (ESOZ) for areas designated on the Environmentally Sensitive Lands Map. The ESOZ shall establish standards and procedures to address the following: (list of criteria omitted) The amendment also deleted language requiring that the County adopt an ESOZ ordinance within two years after the completion of the consultant's wetland buffer study and by 2005 adopt LDRs for the ESOZ. Finally, as amended, Policy D.3.2.4 reads as follows: D.3.2.4. The County shall require a vegetative buffer between contiguous wetlands and developed areas to protect the water quality of the drainage course as established in the County Land Development Regulations and Policy E.2.2.5 of this Comprehensive Plan. This amendment merely eliminated reference to a "minimum 25- foot" vegetative buffer and added language that the buffer provisions in Policy E.2.2.5 would now apply. Prior to the 2003 amendments, the wetland buffer averaging and variance provisions were not included in the Plan, but instead were established in the County's LDRs. The amendments conform the Plan policies to the County's existing practices for averaging and variances. The changes to Policy E.2.2.5(a)(1)(a) and (b) require that the County's LDRs address wetland buffer averaging by only allowing buffers to fall below the established minimums if an overall greater buffer width is achieved. (In other words, the County must maintain 25 and 50-foot natural vegetative buffers around wetlands and wetlands associated with certain rivers, respectively; however, through an averaging process, the buffers may average 25 and 50 feet, rather than be a static 25 and 50 feet around the entire wetland.) Averaging allows the County to consider site-specific conditions, thereby providing better protection and conservation of wildlife and resource protection. Similarly, the change to the Policy requires that the LDRs address variances to the wetland buffer requirement. Variance procedures follow those previously set out in the County's LDRs. (The record shows that in the last four years, the County has never granted a variance to reduce or eliminate a buffer.) Before the amendments to Policies E.2.2.10(b) and E.2.2.17, those Policies required LDRs which would establish standards for certain identified environmental features, such as shellfish harvesting, water quality, flood plain capacity, and water dependent wildlife, through the use of a zoning overlay, that is, an ESOZ. The amendments changed the policy from mandatory establishment of an ESOZ in the LDRs to a discretionary act. (Policy E.2.2.17 now provides that "[b]y 2005 or sooner, the County shall consider adoption of an [ESOZ] ") The original ESOZ provision was placed in the Plan during the Plan update in 1999-2000 as a strategy to protect environmentally sensitive lands. Since that time, the County has determined that other types of protection strategies may protect environmentally sensitive lands as well as or better than an ESOZ. The County intends to conduct a study of the ESOZ to determine whether or not it is a preferred strategy for environmental protection. The amendments are designed to provide the County with flexibility to rely on other strategies if they provide a better way to achieve the same result. Since adoption of the ESOZ policy, the County has instituted new regulations, adopted further protective measures, established regulatory programs, and hired additional personnel for the purpose of protecting the natural resources in the County. If these (and other) measures address the issues that the ESOZ would address, there is no need to duplicate the other natural resource protection programs. If the Plan as a whole protects environmentally sensitive lands, then the change to the ESOZ Policies will not reduce protection of natural resources in the County. The ESOZ is designed to establish standards and procedures to address shellfish harvesting areas; surface water quality; flood storage and flood plain capacity; wetland dependent wildlife and other endangered species; environmental scenic views and vistas; provisions for development mitigation, revegetation, buffering, and setback measures within the ESOZ; and provisions for building and development practices and techniques which protect the integrity of the ESOZ. There are, however, numerous other Plan provisions which address these same areas of concern. The County will analyze these policies and other possible protection measures to determine whether an ESOZ is the preferred alternative. Accordingly, the more persuasive evidence establishes that the amendments to Policies E.2.2.10(b) and E.2.2.17 do not reduce the protection currently afforded environmentally sensitive lands by the Plan. Wetland Data and Analysis The JEA Background Report compiled a literature review of the basic principles of buffer zones, set forth the ecological benefits of buffer zones, and compiled a summary of various buffer ordinances adopted by counties throughout the State. The JEA Final Report provided a methodology for calculating buffer widths based on vegetation and groundwater drawdown and recommended that a 300-foot wetland buffer be preserved adjacent to all wetlands in order to provide protection to water quality, water quantity, and wildlife habitat. With regard to water quality, buffers are primarily beneficial for protecting against the effects of sedimentation and turbidity. However, methods other than buffers can be implemented which can be equally effective in reducing sediment transport. In other words, a 300-foot buffer is not always necessary to prevent sediment transport. Based upon information presented to the Working Group over an 18-month period after the Final Report was submitted, the County determined that, through its Environmental Resource Permit program, the District effectively regulates activities which can cause sedimentation and turbidity, and that additional buffer widths were not needed to protect against sedimentation and turbidity. The County is not required to duplicate or exceed the requirements of a state or regional agency's permitting program. With regard to water quantity, the Final Report and Working Group considered the extent to which wetland buffers may provide the benefit of protecting against adverse effects of groundwater drawdown. Based on evidence presented to the Working Group, the County determined that adequate measures were in place (through District oversight and permitting requirements) to prevent adverse groundwater effects, and that additional buffers were not needed to address this issue. As to the habitat protection issue, the Final Report recommended a 300-foot wetland buffer to protect those species "that require a wide surrounding upland area," but also stated that, based on unspecified "policy decisions," a wetland buffer of less than 300 feet can provide protection to wetlands. The Final Report's recommendation was based on the assumption that the spatial requirements for various wildlife species present in the County ranged from 20 to 6,336 feet. There was no evidence, however, of a direct correlation between spatial requirements and the upland habitat needs of the studied species. Also, the Final Report does not contain any data and analysis of the upland habitat needs of the species. The methodology used by JEA in reaching a wetland buffer recommendation was not professionally acceptable. First, although the Final Report contains several tables purportedly summarizing "recommended buffer widths," citing several scientific studies to support those conclusions, those studies do not support the JEA conclusions. That is to say, the studies cited in the Final Report as the basis for buffer width recommendations are neither consistent with, nor support, the buffer widths contained in the Final Report. Similarly, although the recommendations in the Final Report are based upon Appendix A attached thereto ("Species List of Wetland-Dependent Wildlife Habitat"), Appendix A does not relate to the upland habitat needs for a species. In other words, there is no direct correlation between the spatial requirements as shown in Appendix A and the upland habitat needs of the listed species. Based upon the spatial requirements JEA listed for each species, JEA then plotted an algebraic curve correlating the number of species with the spatial requirements. Without explaining the reasons, JEA then decided to protect 50 percent of the species in a given type of habitat and, referring to the curve, determined that a 300-foot buffer would be necessary to protect the 50 percent. However, this is not a professionally acceptable methodology for the following reasons: the underlying studies were not necessarily representative of the habitat needs of the species in the County; the spatial requirements did not necessarily correlate with actual upland habitat requirements; and JEA erroneously translated spatial requirements from water's edge or width of forest needed as being the upland habitat needs from wetlands edge. The evidence supports a finding that this is not a professionally acceptable methodology for determining buffer widths. In summary, the County and DDI established that the JEA Background and Final Reports are not based on the best available relevant data and analyses for determining appropriate buffer widths. Besides the questions raised about the acceptability of the methodology used in reaching the 300- foot buffer recommendation, the County determined that other types of regulations could and do provide the same or better resource protection. As a result of the Working Group process, the County received extensive additional scientific and technical information regarding buffers, including the water quality benefits of buffers; the effectiveness of current regulatory programs of the District in protecting water quality; the effectiveness of the District's programs for protecting against adverse groundwater drawdown; and the relative effectiveness of wetland buffers in protecting wildlife habitat. Petitioners' Objections Petitioners' objections are grouped into six broad categories: that the amendments are not supported by adequate data and analyses; that the amendments are not in compliance with Section 163.3177(6)(d), Florida Statutes, and numerous portions of Florida Administrative Code Rule 9J-5.013 (which pertains to the Conservation Element); that the amendment to Policy E.2.2.10(b) is a self-amending policy; that Policy E.2.2.5(a)(1) fails to provide a clear, predictable standard for variances; that the amendments conflict with other Plan provisions; and that the amendments are inconsistent with six provisions within the State Comprehensive Plan, as established in Chapter 187, Florida Statutes. These objections will be discussed separately below. Data and analyses While the JEA Final Report was original data collected by the County, there is no credible evidence that it is either the best available data or based on a professionally accepted methodology. (See Findings of Fact 32-40.) The County conducted an additional 18 months of extensive data gathering and analyses of the issues addressed in the Final Report. The amendments were consistent with, and an appropriate reaction to, the results of that data and analyses and are based upon the best available, appropriate scientific data gathered using a professionally acceptable methodology. The more persuasive evidence supports a finding that Petitioners have failed to establish beyond fair debate that the amendments are not based upon relevant and appropriate data and analyses. Inconsistency with a statute and rule Petitioners next contend that the amendments are not in compliance with Florida Administrative Code Rule 9J- 5.013(3)(b), which addresses the protection and conservation of wetlands, and reads as follows: Future land uses which are incompatible with the protection and conservation of wetland functions shall be directed away from wetlands. The type, intensity or density, extent, distribution and location of allowable land uses and the types, values, functions, sizes, conditions and locations of wetlands are land use factors which shall be considered when directing incompatible land uses away from wetlands. Land uses shall be distributed in a manner that minimizes the effect and impact on wetlands. The protection and conservation of wetlands by the direction of incompatible land uses away from wetlands shall occur in combination with other goals, objectives and policies in the comprehensive plan. Where incompatible land uses are allowed to occur, mitigation shall be considered as one means to compensate for loss of wetland functions. The County has adopted a three-tiered approach to satisfy this rule. First, the Future Land Use Map directs intensities away from significant water bodies. Second, lower land use densities have been adopted in coastal areas. Third, numerous policies require site-specific review of, and protection for, environmentally sensitive lands. This approach has previously been found to be in compliance, and it is a land use planning type of approach recognized by the Department. Petitioners did not establish beyond fair debate that the amendments are not in compliance with this rule. Petitioners next contend that the amendments are not in compliance with Florida Administrative Code Rule 9J- 5.013(2)(b)4., which requires that a plan's Conservation Element contain one or more specific objectives which "[c]onserve, appropriately use and protect fisheries, wildlife, wildlife habitat[,] and marine habitat." As noted above, with the additional provisions for averaging and variances, the wetland buffer distance requirements remain the same, and they are desirable from a land planning perspective. In addition, the change to the ESOZ provision does not reduce any current provisions in the Plan. Petitioners did not establish beyond fair debate that the amendments are not in compliance with this rule. Petitioners further contend that the amendments are not in compliance with Florida Administrative Code Rule 9J- 5.013(2)(c)3., 5., and 6., which requires that a plan's Conservation Element contain at least one policy for each objective which addresses protection of native vegetative communities from destruction by development activities; restriction of activities known to adversely affect the survival of endangered and threatened wildlife; and protection and conservation of the natural functions of existing soils, fisheries, wildlife habitats, rivers, bays, lakes, floodplains, and wetlands. The evidence clearly demonstrates that such policies exist in the Plan, and that there is nothing in the amendments that is inconsistent with, or will override or prevent implementation of, these policies. Accordingly, Petitioners did not establish beyond fair debate that the amendments do not comply with this rule. Petitioners next contend that the amendments are not in compliance with Section 163.3177(6)(d), Florida Statutes, which requires that a plan must contain a Conservation Element for the "conservation, use, and protection of natural resources" in the area, including "air, water, water recharge areas, wetlands, waterwells, estuarine marshes, soils, beaches, shores, flood plains, rivers, bays, lakes, harbors, forests, fisheries and wildlife, marine habitat, minerals, and other natural and environmental resources." The parties have stipulated that prior to the adoption of the amendments, the County's Plan was in compliance. The more persuasive evidence is that the amendments will not reduce the conservation, use, and protection measures of the Plan. Therefore, Petitioners have not established beyond fair debate that the amendments are not in compliance with this statute. Self-amending policy Petitioners contend that the amendment to Policy E.2.2.10(b) is a self-amending policy. A self-amending policy is "one which changes as the result of an event that is unknown and unspecified at the time the policy is adopted." Palm Bch. County Bd. of County Comm. et al. v. Town of Jupiter and Dep't of Comm. Affrs., DOAH Case No. 95-5930GM (Div. Admin. Hrgs. Jan. 24, 1997; Admin. Comm. Oct. 21, 1997). However, a policy is not self-amending if it sets out a clear general policy and specific conditions for changing that policy. Id. Comprehensive plans need not include the implementing regulations, but rather should provide meaningful guidelines for the content of more detailed LDRs. See Fla. Admin. Code R. 9J-5.005(6)("It is not the intent of this chapter to require the inclusion of implementing regulations in the comprehensive plan ") Policy E.2.2.10(b) establishes a clear general policy to preserve and conserve wetlands through specific programs. Specific conditions for each program are set forth elsewhere in the Plan, including Policy E.2.2.5(a)(1) (natural vegetative upland buffers); Policy E.2.2.13 (significant natural communities habitat); and Objective E.2.8 (threatened and endangered species) and related policies. All of these are implemented in the planning process, as required by Policy E.2.2.7. In combination, these policies establish clear policy direction and guidelines for developing future LDRs. Therefore, it is found that Policy E.2.2.10(b) is consistent with other policies, and Petitioners have not established beyond fair debate that the Policy is self-amending.4 Does Policy E.2.2.5 have a clear, predictable standard? Petitioners contend that Policy E.2.2.5(a)(1) is not in compliance because it fails to provide a clear, predictable standard for variances. They go on to assert that because there is no predictable standard in the Policy, it essentially equates to a form of a self-amending policy. Variances are special exceptions to regulations and allow a non-conforming use in order to alleviate undue burden or unnecessary hardship. See, e.g., Troup v. Bird, 53 So. 2d 717, 720-22 (Fla. 1951). They must be "consistent or in harmony with, or not subversive or in derogation of, the spirit, intent, purpose or general plan of such regulations." Id. at 721. Policy E.2.2.5 merely requires that variances must be established in the LDRs. While the more specific standards and procedures for granting variances will be incorporated into the LDRs, the testimony corroborates that variances can only be approved when "an unavoidable wetland impact occurs such as but not limited to a road crossing," and that in no circumstance can the buffer width be totally eliminated. Further, the variance must be unavoidable, and it cannot be inconsistent with the overall objectives of the Plan or LDRs. Therefore, Petitioners have failed to show beyond fair debate that the amendment does not establish a sufficiently clear general policy direction or that the policy is self-amending. Conflicts with other provisions in the Plan Petitioners next contend that the amendments as a whole, or amendments pertaining to a single policy, conflict with various Goals, Objectives, and Policies within the Plan, including Goal A.1, Objective A.1.1, Goal E.2, Objective E.2.2, Policies E.2.2.4, E.2.2.5(c), E.2.2.8, E.2.2.9, E.2.2.10, E.2.2.17, E.2.2.18, Objective E.2.3, Policy E.2.3.7, Objective E.2.8, Policy E.2.8.7, and Policy E.2.8.8. If goals, objectives, and policies do not conflict, then they are considered consistent. Goal A.1 in the Land Use Element is the County's overall guiding principle for managing growth and development in a responsible manner, and it requires the County to balance several interests, including encouraging/accommodating land uses which make the County a viable community; creating a sound economic base; offering diverse opportunities for a wide variety of living, working, shopping, and leisure activities; and minimizing adverse impacts on the natural environment. The more persuasive evidence supports a finding that the amendments do not conflict with this guiding principle. Objective A.1.1 in the Land Use Element requires that the County designate future land uses based upon environmental conditions and constraints. Through testimony, the County established that its approach is to direct incompatible land uses away from environmentally sensitive lands, limit the types of land uses adjacent to significant water bodies, reduce land use densities in coastal areas, and require environmental analysis and protection on a site-by- site basis. The challenged amendments are consistent with that approach. In combination with other provisions of the Plan, they also address the issues required by Objective A.1.1: vegetation; wildlife; aquifer recharge; and the like. Petitioners have failed to establish beyond fair debate that the amendments are inconsistent with Objective A.1.1. Goal E.2 in the Conservation Sub-Element of the Conservation/Coastal Management Element of the Plan requires conservation, use, and protection of natural resources to ensure availability for existing and future generations. Objective E.2.2 requires protection of various natural resources to provide for maintenance of environmental quality and wildlife habitat. Policy E.2.2.4 requires identification of native vegetative communities and their associated wildlife species. The County has identified those resources and protected some of those resources through land acquisition. Policy E.2.2.5(c) requires that criteria be established in the LDRs for listed species protection. The County has implemented such criteria and measures for protection of listed species. Policy E.2.2.8. requires that various habitat measures be implemented; these measures have been implemented and continue to be implemented. Policy E.2.2.9 requires the adoption of guidelines and standards for wildlife corridors through such measures as Planned Unit Development regulations and optional density bonuses. The County has adopted such measures. Policy E.2.2.10 was amended in part and requires guidelines and standards for the preservation and conservation of wetlands through various land development techniques. This Policy serves as a summary of measures that have been implemented by the County. Policy E.2.2.17 is another amended policy related to the ESOZ. As previously discussed, the Policy was changed from requiring mandatory adoption of an ESOZ in the LDRs to requiring the County to consider adoption of an ESOZ. The County is re-evaluating its prior decision to use the ESOZ as a primary measure to provide protection of environmentally sensitive lands. The amendment allows the County the flexibility to adopt different measures if they are found to be preferable. Finally, Policy E.2.2.18 requires the County to investigate certain Outstanding Florida Water designations. This Policy is unrelated to the amendments and is therefore irrelevant to this proceeding. Petitioners have not established beyond fair debate that the amendments will impact or otherwise conflict with the cited Goal, Objective, or Policies. Objective E.2.3 pertains to surface water quality and requires maintenance of surface water quality. Underlying Policy E.2.3.7 requires restriction of land uses which adversely affect the quality and quantity of water resources. The amendments do not lessen the protections afforded by the Plan. Likewise, the County has implemented numerous other Policies to protect water quality, such as Policies D.3.2.1, D.3.1.8, and E.2.6.1, and the more persuasive evidence supports a finding that the amendments will not adversely affect those provisions. Again, Petitioners have not established beyond fair debate that the amendments are inconsistent with this Objective and Policy. Objective E.2.8, which relates to threatened and endangered species, protects habitat of populations of existing listed species. Policy E.2.8.7 thereunder relates to land use classifications adjacent to certain environmentally sensitive areas. The amendments do not change or reduce the protection afforded by that Policy. Policy E.2.8.8 requires the County to assist state agencies in preparing a wildlife corridor plan and to determine, after completion of the JEA study, whether changes to the wetland buffers are necessary and appropriate. The evidence shows that the County considered the JEA study and related data and analysis and determined that changes to the buffer dimensions were not needed or appropriate, but that clarification of the averaging and variance procedures were. The amendments do not change or reduce the protections established by that Policy. Petitioners have not established beyond fair debate that the amendments are inconsistent with this Objective and those two Policies. Finally, Petitioners have alleged in very general terms that the amendments are inconsistent with a number of provisions of the State Comprehensive Plan, as codified in Section 187.201, Florida Statutes. They include subparagraphs (8)(b)10. and 12.; (10)(b)1., 3., and 7.; and (26)(b)7. Section 187.201(8)(b)10., Florida Statutes, sets as state policy the protection of "surface and groundwater quality and quantity in the state." Because the evidence clearly establishes that the amendments do not adversely impact the Plan's provisions to protect water quality and quantity, Petitioners have failed to establish beyond fair debate that the amendments are inconsistent with this statute. Section 187.201(8)(b)12., Florida Statutes, sets as state policy the elimination of discharge of inadequately treated wastewater and stormwater runoff into waters of the state. For the reasons previously found, Petitioners have failed to establish beyond fair debate that the amendments are inconsistent with this statute. Section 187.201(10(b)1., Florida Statutes, sets as state policy conservation of certain natural resources, including wetlands and wildlife, to maintain listed functional values. For the reasons previously found, Petitioners have failed to establish beyond fair debate that the amendments are inconsistent with this statute. Section 187.201(10)(b)3., Florida Statutes, sets state policy prohibiting the destruction of endangered species and protection of their habitats. For the reasons previously found, Petitioners have failed to establish beyond fair debate that the amendments are inconsistent with this statute. Section 187.201(10(b)7., Florida Statutes, sets as state policy the protection and restoration of the "ecological functions of wetland systems to ensure their long term environmental, economic and recreational value." For reasons previously found, Petitioners have failed to show beyond fair debate that the amendments are inconsistent with the statute. Finally, Section 187.201(26)(b)7., Florida Statutes, sets as state policy the development of local plans that "implement and accurately reflect state goals and policies and address problems, issues and conditions that are of particular concern in a region." Petitioners have failed to show beyond fair debate that the amendments are inconsistent with the goals and policies of this statute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the St. Johns County plan amendments adopted by Ordinance No. 2003-31 on March 25, 2003, are in compliance. DONE AND ENTERED this 30th day of March, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2004.
The Issue This is a challenge to certain administrative rules adopted by the St. Johns River Water Management District relating to permitting criteria for isolated wetlands. Section 373.414, F.S. mandates that permitting criteria for isolated wetlands be adopted by water management districts, by rule, by March 31, 1987. The statute also includes four more specific requirements for those rules. Petitioners contend that St. Johns River Water Management District Rule Chapter 40C-4, F.A.C. and the Applicant's Handbook, Management and Storage of Surface Waters, adopted as a rule by reference, fail to comply with the statutory mandate and are an invalid exercise of delegated legislative authority by the District. Respondent, St. Johns River Water Management District, contends that its rules comply with Section 373.414, F.S.. St. Johns River Water Management District contests the standing of Petitioner, the Florida Wildlife Federation, Inc. Intervenors, E.I. Du Pont De Nemours and Company, Inc. and Associated Minerals (USA), Inc., support the District's position and contest the standing of both Petitioners.
Findings Of Fact Petitioner, Sierra Club, Inc., (Sierra) is a non-profit corporation registered to do business within the state of Florida. It is an international organization, with regional committees, state chapters, and local regional groups. The Florida chapter has 15 regional groups, several of which are located within the jurisdictional boundaries of the St. Johns River Water Management District (SJRWMD). About 6,000 members live within the boundaries of the SJRWMD. The overall purpose of Sierra is to explore, enjoy and protect the natural resources of the earth. Sierra commonly offers outings for the enjoyment and education of its members and the general public. These involve traveling, hiking, birdwatching and other wildlife observation. Part of the outings program includes hiking and viewing of isolated wetlands and wildlife dependent on those wetlands. These outings take place within the SJRWMD. Some Sierra members are actively involved in work related to isolated wetlands, including studies, consulting, and managing of wetlands, some of which are located within the SJRWMD. The Florida Wildlife Federation, Inc. (FWF) is a non-profit corporation registered to do business in the state of Florida. It is comprised of organizations and individual members who support the wise use and management of Florida's natural resources. Sportsmen and naturalists who belong to the club are involved in hunting, fishing, hiking, birdwatching, nature photography and other activities loosely called "naturalizing". These activities take place within SJRWMD boundaries and rely on wildlife species which live in, or are dependent upon, isolated wetlands. FWF attracts membership by publicity of its existence and purpose directed to sportsmen and naturalists. Respondent, SJRWMD, is a political subdivision of the state of Florida, with the authority to regulate, through its permitting process, the management and storage of surface waters (MSSW) within its designated geographical boundaries, pursuant to Part IV of Chapter 373, F.S. Prior to adoption of the administrative rules in issue in this proceeding, the Florida Department of Environmental Regulation (DER) delegated to Respondent the responsibility for administration of its stormwater rule. Intervenors conduct heavy metal mining operations within the District. These mining operations are regulated pursuant to Chapter 40C-4, F.A.C. and the Applicant's Handbook. Virtually all mining activities exceed existing permitting thresholds and all District wetland criteria apply to the activities. Since 1983, SJRWMD has been regulating wetlands and wetland MSSW impacts, including isolated wetlands, throughout its 19-county area. The rules adopted in 1983 included all wetlands, both isolated and non-isolated. In 1986, the legislature created Section 373.414, F.S., which provided as follows: 373.414 Wetlands.-- By March 31, 1987, for those water management districts to which the department has delegated the responsibility for administration of its stormwater rule, each district shall adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department for purposes of regulation of dredging and filling. The rule shall include: One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that shows the fish and wildlife values of such areas to be minimal; Criteria for review of fish and wildlife and their habitats for isolated wetlands larger than the minimum size; Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use; and Provisions for consideration of the cumulative and offsite impacts of a project or projects. This section does not affect the authority of the water management districts to regulate impacts on water quality and water quantity. Until a water management district has adopted a rule to implement the provisions of subsection (1), review of fish and wildlife impacts in small isolated wetlands shall be limited to: Wetlands that are 5 acres in size or larger; or Wetlands that are used by a federal or state designated threatened or endangered species; or Wetlands located within an area of critical state concern designated pursuant to chapter 380; or Wetlands that are less than 5 acres in size having a cumulative total acreage greater than 30 percent of the total acreage proposed for development, within a development project greater than 40 acres in size. Section 373.414(3), F.S. (1986) was repealed effective March 31, 1987, the deadline by which the districts were to have their own isolated wetlands rules in place. Sections 373.414(1) and (2), F.S. remain in effect. "Wetlands" is defined in SJRWMD's MSSW rule as: ...hydrologically sensitive areas which are identified by being inundated or saturated by surface or groundwater with a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Rule 40C-4.021(11), F.A.C. This definition is repeated in Section 10.7.3 of the Applicant's Handbook. Section 10.7.3 also provides: Wetlands are important components of the water resource because they serve as spawning, nursery and feeding habitats for many species of fish and wildlife, and because they provide important flood storage and water quality benefits. Not all wetlands provide these benefits, nor do they provide them to the same extent. A wide array of physical and chemical factors affect the functioning of any wetland community. * * * Small isolated wetlands are totally unique biological systems. They are not small versions of large wetlands. They play two major roles in animal ecology: to harbor diverse species that use the habitat for their entire life cycle, and to provide a productive resource for transient species. If a wetland is truly isolated, its fish population is generally limited to the smaller-bodied, smaller-mouthed varieties which are limited in their predatory abilities. This permits the abundance of amphibians and invertebrates not found in larger, more permanent wetlands where the fish would rapidly decimate the population. Amphibians are a cornerstone of the vertebrate food chain. They are food for a variety of snakes, which in turn, are food for hawks. Wading birds find easy prey as the isolated wetlands begin drying up and contracting. The entire cycle of the pond, from fully wet to dry, is significant. Ambystoma tigrinum (tiger salamanders) are hatched and raised in isolated wetlands; they leave, and must return to breed in the same pond. They have a strong homing instinct. Ignorant of intervening events, they are often found spending their honeymoon dodging cars on an apartment complex pavement, seeking in vain the pond of their birth. The SJRWMD adopted Chapter 40C-4, F.A.C. and its Applicant's Handbook to regulate the construction, operation, alteration, removal or abandonment of surface water management systems, to insure that those activities will not harm the water resources of the District and insure that they are consistent with the objectives of the District. Activities which do not meet certain thresholds established in Rule 40C-4.041, F.A.C. do not require a District MSSW permit, including those activities impacting an isolated wetland. The threshold provisions pre-date Section 373.414, F.S. and still apply. The threshold provisions of Rule 40C-4.041(2)(b), F.A.C., challenged by Petitioners, state as follows: 40C-4.041 Permit Required. * * * (b) An individual or general permit is required prior to the construction, alteration, operation, maintenance, abandonment or removal of a surface water management system which: Is capable of impounding a volume of water of forty or more acre feet; or Serves a project with a total land area equal to or exceeding forty acres; or Serves a project with a total land area equal to or exceeding ten acres, when any part of the project is located within the Wekiva River Hydrologic Basin north of State Road 436; or Provides for the placement of twelve or more acres of impervious surface which constitutes 40 or more percent of the total land area; or Provides for the placement of one half acre or more of impervious surface, when any of the impervious surface is located within the Wekiva river Hydrologic Basin north of State Road 436; or Contains a traversing work which traverses: A stream or other watercourse with a drainage area of five or more square miles upstream from the traversing work; or An impoundment with more than ten acres of surface area; or Contains a surface water management system which serves an area of five or more contiguous acres of a hydrologically sensitive area with a direct hydrologic connection to: A stream or other watercourse with a drainage area of five or more square miles; or An impoundment with no outfall, which is not wholly owned by the applicant and which is ten acres or greater in size; or A hydrologically sensitive area not wholly owned by the applicant. Is wholly or partially located within the Wekiva River Hydrologic Basin's Riparian Habitat Protection Zone as described in paragraph 40C-41.063(3)(e). The same threshold provisions are contained in Section 3.3.1, Applicant's Handbook, also challenged by Petitioners. In 1987, after passage of Section 373.414, F.S. the District amended its wetland regulations to provide that all wetlands would be evaluated, regardless of size, within the already-established permit thresholds: A wide variety of wetland habitats exist within the St. Johns River Water Management District. The functions which these habitats serve are dependent on many factors. Biological and hydrological evidence demonstrate that size is not the single determinant of wetland value. Since the District bases its evaluation on wetland functions, the District will review impacts to all wetlands (a zero acre threshold will be employed) in reviewing impacts to fish and wildlife and their habitats for systems requiring a permit from the District. * * * 10.7.5 Wetland Evaluation Applicant's Handbook As the result of an objection by the Joint Administrative Procedures Committee (JAPC) stating that the District had failed to comply with Section 373.414(1)(a), F.S., the District amended the zero acre review threshold for isolated wetlands and adopted a 0.5 acre review threshold, based upon biological investigations indicating that wetlands below this size have minimal fish and wildlife value. In all applications for MSSW permits under Chapter 40C-4, the District reviews impacts to isolated wetlands unless those wetlands are less than 0.5 acre in size and are not used by threatened or endangered species. No permit application, however, is required for projects under the thresholds described in paragraph 13, above, even though those projects might include wetlands larger than 0.5 acres. Staff of the SJRWMD concedes that the non-regulated isolated wetlands might have significant value and agrees with Petitioner's experts that isolated wetlands found in projects below the Rule 40C-4.041(2)(b), F.A.C. thresholds (called "get-in-the-door" thresholds) could have more than minimal fish and wildlife value. Petitioners challenge the entire Chapter 40C-4, F.A.C. and Applicant's Handbook for non-compliance with Section 373.414(1)(d), F.S. The SJRWMD does not consider, and nothing in its rules require consideration of, cumulative impacts of a series of isolated wetlands included in below-threshold projects even though there could be a negative cumulative impact from the loss of those wetlands. Petitioners challenge section 10.7.4 Wetland Review Criteria, Applicants Handbook, to the extent that it may limit consideration of impacts to isolated wetlands to off-site aquatic and wetland dependent species, unless threatened or endangered species are involved. This section provides in pertinent part: 10.7.4 Wetland Review Criteria In determining whether a system will meet the objective contained in Paragraph 9.1.1(j) and that part of the criterion contained in Paragraph 10.2.1(e) regarding hydrologically related environmental functions, the District will, except when threatened or endangered species are involved, consider only the impacts to off-site aquatic and wetland dependent species relative to the functions currently being provided by the wetland to these types of fish and wildlife. This assessment of off-site impacts is based upon a review of pertinent scientific literature, soils and hydrologic information, and a general understanding of the ecological resources of the site. Generally, site specific biological data collection is not required. An applicant must provide reasonable assurance that a proposed system will not cause adverse off-site changes in: the habitat of an aquatic and wetland dependent species, the abundance and diversity of aquatic and wetland dependent species, and the food sources of aquatic and wetland dependent species. The only exception to limiting review of a system under this Subsection to off-site impacts is where wetlands are used or reasonable scientific judgement would indicate use by threatened or endangered species listed in Sections 39-27.003 and 39-27.004, F.A.C., which are aquatic or wetland dependent. In this instance, both off-site and on-site impacts will be assessed. Petitioners also challenge section 16.1.3(a), Applicant's Handbook, to the extent that it may limit mitigation requirements to off-site impacts. If a project as initially proposed is subject to Respondent's surface water permitting requirements, and as initially proposed fails to meet wetland review criteria, mitigation may be considered as a means of bringing the proposed project within permitting requirements. The challenged portion provides: 16.1.3 Mitigation (a) Mitigation is defined here as action or actions taken to offset the adverse effects of a system on off-site functions and in the care of threatened or endangered species, to offset the adverse effects of a system on on-site and off-site functions. Although there may be a difference in degree of functions performed by isolated wetlands on site, as compared to the degree of functions performed by isolated wetlands off-site, the difference in negligible. Adverse ecological effects on-site will also be felt off-site. In developing its criteria SJRWMD staff could not conceive of a situation where a functioning wetland or isolated wetland would be eliminated and not have an off-site impact. Finally, Petitioners challenge the last paragraph of Section 16.1.4, Applicant's Handbook, related to mitigation for mining projects that fall under the jurisdiction of the Department of Natural Resources (DNR) pursuant to section 378.601, F.S. (heavy mineral extraction). Section 16.1.4, Wetland Creation, Applicant's Handbook, provides guidelines to be used to estimate the extent of wetland creation which may mitigate for the destruction of a unit of wetland. The challenged portion of the section provides: For lands and mining activities that fall under the jurisdiction of the Florida Department of Natural Resources pursuant to section 378.601, F.S. mitigation or compensation plans that are consistent with the land reclamation policies and criteria approved by that agency will be considered by the District as satisfactory mitigation. (emphasis added). The District is not required to allow mitigation if impacts are so substantial that they cannot be offset. If the District does not consider a DNR reclamation plan as sufficient, the District applies its wetland review criteria in section 10.7.4, Applicant's Handbook. For heavy mineral mining, DNR requires one-to-one mitigation for every wetland, regardless of type, that is disturbed by the zoning activity, and the restoration of wildlife habitat, including threatened or endangered species. Heavy mineral mining, in contrast to other mining such as phosphate, has far less impact on the environment. This is reflected in the success which has been experienced in restoring wetlands disturbed by heavy mineral mining.
The Issue Whether or not Applicant Homecomers, Inc. should be issued a dredge and fill permit upon reasonable assurances that the proposed project meets the requirements of Chapter 403 F.S. and Chapter 17-3 F.A.C.
Findings Of Fact The following Petitioners were represented at formal hearing by J. Stephen Alexander, Esquire: Bill and Penny Halsell Barbara Wayne D. Judy D. Borst Edwin K. Martin J. Stephen Alexander and Torim V. Alexander M. Jerry Prater and James L. Prater Jackie A. Kelly Carol Schaefer Frank A. Schaefer David B. Hoar Lawrence S. Hoar The following Petitioners did not appear for, and were not otherwise represented at, either the formal prehearing conference or the final formal evidentiary hearing: C. Robert Bechin Ben Anderson Resident (signature unintelligible) [possibly also known as Charlie Blitch] Robert Nasife Marie D. Nasife and Robert G. Nasife Kathleen R. Pile and Kevin D. Pile Beverly S. Smith and Greg Smith N. James Hoffner and Bonnie Hoffner 0. Marie D. Nasife Betty Wiant Helen Morgan U. Laura Hoar Y. Rita M. Hoar Neither did any of the foregoing Petitioners listed in this paragraph comply with the terms of either the Order to Show Cause or the Order of Prehearing Instructions entered herein on January 12, 1990. Accordingly, Petitions C, E, F, G, H, K, L, N, O, Q, R, U, and Y should be dismissed. The parties stipulated that the waters of the state which give DER jurisdiction over this project are Class II waters, as defined in Rule 17-3.111 F.A.C. The parties stipulated that the proposed project will not adversely affect the public health, safety or welfare. The parties stipulated that the proposed project will not adversely affect the property of Petitioners. The parties stipulated that the proposed project will not adversely affect navigation in the vicinity of the project. The parties stipulated that the proposed project will not adversely affect recreational values in the vicinity of the project. The parties stipulated that the proposed project will not adversely affect significant historical or archeological resources under the provisions of Section 276.061 F.S. The parties stipulated that the proposed project will not result in adverse cumulative impacts. Applicant Homecomers, Inc. owns a rectangular- shaped piece of property approximately 6.8 acres in size which lies immediately to the south of Palmetto Road in St. Augustine, Florida. It is approximately one-half mile from the Matanzas River. A perimeter ditch runs parallel to three sides of Applicant's property. Water in the perimeter ditch rises and falls with the tides. The eastern boundary of Homecomers' property abuts the westernmost lots in Hawaiian Isles subdivision, except where an elongated pond separates the subdivision lots from Homecomers' property line. Another elongated but smaller pond is more central to the Homecomers parcel. The northeast corner of the property contains another small T-shaped pond. At high tide, the ditch may overflow to one or more of these ponds, further increasing the flow considerably. Neighbors who have had the opportunity to observe the property at high and "`noon" tides describe the property as completely or nearly completely under water at normal high tide. Best estimates appear to show that two-thirds of the 6.8 acres is underwater three or four days in a row, six or seven times per year. No one who testified on behalf of the Applicant had visited the property at high tide. For all practical purposes, Homecomers' entire piece of property is completely within the landward extent of the Matanzas River, a Class II water of the state. The property is connected to the Matanzas River by a 48-inch- diameter culvert. Vegetation on the piece of property includes submerged species, which form a marsh over most of the property, and transitional species, which form a "high marsh." The high marsh area is elevated above the rest of the marsh because of spoil having been placed there in the past. There is also a small area where the spoil is high enough to support upland vegetation. This upland area is next to the location where construction is planned. Homecomers proposes to construct a permanent 40 foot by 40 foot pile- supported house approximately 150 feet south of the center line of Palmetto Road and approximately 90 feet west of the eastern property boundary. The project proposal/permit application calls for the house to be 15 feet above grade. The house and an associated parking area will be connected to Palmetto Road by a 10- foot wide driveway. However, no one who testified on behalf of the Applicant was able to provide any topographical surveys or other plans with researched elevations. The plans provided had been prepared by an engineer only "roughly to scale." Some concerns over precisely how the Applicant could make adequate provisions for utility and sewage connections were raised by Mr. Nock, a local St. Johns County contractor, but these problems were not insurmountable, even by Mr. Nock's estimation. The driveway and parking area will replace an existing jeep trail which, after leveling, will be covered with six inches of coquina. DER's Intent to Grant specifies that all fill be stabilized. The ditch which the driveway crosses has been viewed to regularly contain twelve to fourteen inches of standing water. The evidence of Mr. Tyler is to the effect that a driveway on pilings would be preferable to, but more expensive than, a coquina-based driveway, but the coquina driveway as proposed meets DER's assessment that there will be no significant negative environmental impact from the driveway. The vegetation on the existing jeep trail is of the high marsh variety and is sparse. The driveway and parking area will not be surfaced with asphalt or any other impervious material. An 18-inch diameter culvert, 18 feet long, will be placed beneath the driveway at the point at which it crosses over the perimeter ditch. Existing culverts in the vicinity are 16 inches in diameter. The Applicant's proposal is comparable or slightly preferable to these existing culverts which are functioning satisfactorily without adding to road or property flooding. After some temporary construction damage to the ground vegetation, which may reasonably be expected to "grow back" or otherwise correct itself in time, construction of the proposed driveway and parking area will permanently eliminate only approximately 1900 square feet of high marsh wetlands, and construction of the house will shade, to varying degrees, 1600 square feet of high marsh wetlands. The permanent shade under the completed house may be expected to permanently destroy certain ground vegetation directly under the house, but equally acceptable ground vegetation may be reasonably expected to take its place as the ecosystem naturally adjusts to the man-made intrusion. Because of the natural passage of the sun from east to west, the shade around the house caused by the house will also move in a shifting east-to-west pattern each day, and this type of shade is not considered significantly damaging to vegetation. At present, the daily tidal water flow moves over the existing jeep trail between the perimeter ditch and "T" pond. The 18-inch culvert will not obstruct this flow. Rather, it should allow a more direct connection. During "moon tides," approximately six or seven times a year, the high marsh and upland areas of Homecomers' property are covered with water. At these times, water will flow directly from the "T" pond to the large, elongated, narrow pond and then to the perimeter ditch which lies to the south of Homecomers' property. The proposed project will not impede that flow since it is not to be constructed in the usual flow-way. The proposed project will not cause harmful erosion or shoaling. Erosion and shoaling result from the rapid flow of water which lifts material from one point (erosion) and deposits it at a different point (shoaling). Since the flow of water around Homecomers' property is tidal, it moves very slowly, and no erosion or shoaling, much less harmful erosion or shoaling, is expected. Although some disruption is inevitable, no wildlife will be destroyed by construction of the proposed project. Many types of birds feed in the ponds and perimeter ditches, but the proximity of these areas to Palmetto Road and to existing houses does not affect such feeding at the present time, and the evidence presented was insufficient to show that the addition of the proposed house and driveway will have an ecologically significant impact on the feeding habits of the birds actually observed, and it is unclear if any of the birds observed are officially classified as either "endangered" or "threatened." Thus, the proposed project will have no discernible effect upon wildlife or its habitat. Disruption to the fish in the area is probable but unquantified. It is the "low marsh," not the "high marsh," which is considered to constitute a fish "nursery" in the ecosystem, but when high or "moon" tides cover the high marsh to a depth in which fish can swim, the high marsh can be considered to serve as fish habitat. However, since such flooding is infrequent, and since the vegetation to be destroyed by the driveway is sparse, the impact upon fish habitat will be minimal. The effect of the proposed project on marine productivity is unquantified and predicted to be minimal. A project can negatively impact marine productivity by either damaging water quality or by eliminating wetland areas which, as plants disintegrate, provide marine life with tiny organic food particles. Since the area to be covered with coquina is sparsely vegetated and infrequently flooded, its contribution to the food chain is not significant. Although Dr. Tropino-Rosenthaul testified as an expert marine biologist that larval forms are susceptible to petroleum products, the degree of impact of oil and grease that might be discharged from motor vehicles using the driveway and parking area would be small, and their impact is subject to a lot of variables, including but not limited to dilution, runoff quantity and velocity, and whether or not the surface is pervious or impervious. Petitioners concede that high tides increase the flow in the ditch, and it must be inferred that such greater velocity and dilution with such increased flow would continue. To date, there is no data to quantify what amount or concentration of oil and grease would harm the larvae present in this location, but in order to minimize impacts from any oil and grease leaks on the property, the driveway and parking area are to be constructed of coquina (pervious or porous material), rather than asphalt (impervious material), so that any drips will proceed downward into the soil rather than laterally into surface waters. Oil and grease which does not adhere to the coquina or ground beneath it would be washed into the surface water only on those occasions when the driveway and parking area are flooded. During such flood tides, the greater volume of water will help dilute any oil or grease which is washed into the water. Dr. Tropino-Rosenthaul candidly described most of the damage to be feared as already having occurred when impervious public roadways were cut through the area. In comparison, this project's potential damage is extremely small. For the foregoing reasons, the project will have a slight, but unmeasurable negative impact on water quality and an unquantified effect on marine production. For the foregoing reasons, this is a "borderline case" in the opinion of DER's Mr. Tyler, who felt that the Applicant's willingness to give DER a conservation easement in mitigation of the sporadic and unquantified potential harm this project might cause made granting of this permit in the State's best interest. The proposed conservation easement agreement is made pursuant to Section 704.06, F.S. and is a condition of the Intent to Grant. It is intended to offset any adverse impacts resulting from the proposed project. The easement will ensure that 280,640 square feet of the parcel's 283,400 square feet (1 acre 43,560 square feet) will remain unaltered and continue to function as a productive wetland.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order: (l) Dismissing Petitions C, E, F, G, H, K, L, N, O, Q, R, U, and Y; Denying the relief sought in Petitions A, B, D, L, J, M, P, S, T, V, W, and X; and Approving the Homecomers Application by issuance of a dredge and fill permit as conditioned by the Intent to Grant. DONE and ENTERED this 9th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-5270 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): PFOF of Petitioners A, B, D, I, J, J, S, T, V, X, and W: 1 The stipulation as orally modified at formal hearing is accepted and incorporated in the Recommended Order (RO) as appropriate. 2-3 Rejected as COL, not FOF, as cumulative, and because there was no proof that the species proved to be present were listed as "endangered" or "threatened" by any recognized authority. 4 Rejected as not supported by the record as a whole. 5,8 Rejected as COL, not FOF, as cumulative, and because not supported by the record as a whole. 6-7 Accepted that water quality standards would be minimally adversely affected as set forth in the RO but these are COL, not FOF as stated. Also, Dr. Rosenthal testified that he was unfamiliar with the standards to be applied in this type of proceeding. 9-11 Rejected as COL, not FOF, and as not supported by the record as a whole. Respondent' s PFOF: 1-6 Accepted as modified to better reflect the credible, competent, substantial evidence as a whole. 7-16 Accepted as modified to exclude COL and to better reflect the credible, competent, substantial evidence as a whole. No other proposals have been received to date. COPIES FURNISHED: Rita M. Hoar 15 Hawaiian Boulevard St. Augustine, Florida 32084 F. Resident (possibly also known as Charlie Blitch] 330 Palmetto Road St. Augustine, Florida 32084 K. Kathleen R. Pile Kevin D. Pile 32 Hawaiian Boulevard St. Augustine, Florida 32084 G. Robert M. Nasife 5494 Fourth Street St. Augustine, Florida 32084 B. Kuehn 72 Aloha Circle St. Augustine, Florida 32084 Betty Wiant 64 Kon Tiki Circle St. Augustine, Florida 32084 H. Marie D. Nasife Robert G. Nasife 270 Palmetto Road St. Augustine, Florida 32084 E. Ben Anderson 5443 Fourth Street St. Augustine, Florida 32084 C. Robert H. Bechin 101 Hawaiian Boulevard St. Augustine, Florida 32084 U. Laura Hoar 7 Hawaiian Boulevard St. Augustine, Florida 32084 O. Marie D. Nasife 5489 Third Street St. Augustine, Florida 32084 P. R. M. Kuehn 5494 Atlantic View St. Augustine, Florida 32084 R. Helen Morgan 20 Hawaiian Boulevard St. Augustine, Florida 32084 L. Beverly S. Smith Greg Smith 5495 Fourth Street St. Augustine, Florida 32084 N. James Hoffner Bonnie Hoffner 5536 Sunset Landing Circle St. Augustine, Florida 32084 J. Stephen Alexander, Esquire [for Petitioners, A, B, D, I, J, M, S, T, V, X, and W] Upchurch & Alexander P.A. 200 First Union Bank Building Post Office Box 3956 St. Augustine, Florida 32085-3956 Homecomers, Inc. c/o J. M. Moore Harbor Engineering Co., Inc. 1615 Huffingham Road Jacksonville, Florida 32216 William H. Congdon, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
