The Issue The issue is whether to approve the City of Gulf Breeze's (City's) application for a Consolidated Wetland Resource Permit and Sovereign Submerged Lands Authorization to conduct a restoration project in Pensacola Bay.
Findings Of Fact Background This dispute involves a challenge by Petitioners to the third phase of a restoration project by the City designed to preserve the Island and protect its historical resources. The project site is located in sovereign submerged lands adjacent to the Island on the southwest side of the Highway 98 Bay Bridge which traverses Pensacola Bay connecting the Cities of Gulf Breeze and Pensacola. The Island is not a true island, but has always been connected to the mainland by a strip of land referred to as an isthmus, which meets the shoreline at Lot 36 of an older subdivision known as the First Addition to Casablanca Parcel No. 1 and platted almost sixty years ago. The isthmus juts out from Lot 36 into Pensacola Bay in a northwesterly direction for several hundred feet before making a 90-degree turn to the southwest where the Island then runs roughly parallel to the shoreline for around a half mile. See Joint Ex. 5-7, 14, and The Island, isthmus, and shoreline form the boundary around a small body of water known as Gilmore Bayou, an ecologically important and pristine salt marsh area. According to aerial photographs, at its widest point, the Island appears to be no more than a few hundred feet wide. Petitioners reside at Lot 37, which is just northeast of the isthmus on the shoreline. The rear part of Lot 37 faces Pensacola Bay and the City of Pensacola to the northwest. Lots 36, 35, and 34 (running to the southwest along the shoreline and facing Gilmore Bayou), are owned by Patricia Moreland, Robert Ozburn, and Intervenor Paul Tamburro, respectively, all of whom testified at the final hearing. Except for Petitioners, the project is supported by virtually all of the residents of the area as well as numerous civic organizations. See Joint Ex. 33. On July 14, 2008, the City filed with the Department its Joint Application for Works in the Waters of Florida, which would allow the City to complete the third phase of the project by (a) planting native submerged vegetation over approximately three acres of sovereign submerged lands, and (b) placing approximately 16,000 cubic yards of fill material and planting native emergent vegetation to stabilize the fill material on sovereign submerged lands at the north end of the Island. See Joint Ex. 3. The Department has authority under chapter 373, Florida Statutes, and Florida Administrative Code chapter 18-21 to approve the application. After an extensive review of the application, on August 9, 2010, the Department issued a Consolidated Notice of Intent to Issue Wetland Resource Permit and Consent to Use Sovereign Submerged Lands, which authorized the proposed project. See Joint Ex. 4. The proprietary authorization (letter of consent) was issued under the authority of rule 18- 21.005(1)(c), which identifies a number of activities that qualify for a letter of consent. In this case, because of the range of proposed activities, the project could qualify for a letter of consent under subparagraphs 8., 15., and 16. of the rule. On September 1, 2010, Petitioners filed their petition challenging the proposed agency action. While their initial pleading raised a number of issues, and cited two rules as a basis for reversing the agency action, these allegations have been substantially narrowed over the course of the proceeding and are now limited to the following: whether the project constitutes management activities associated with the protection of a historic site, thus qualifying for a letter of consent under rule 18-21.005(1)(c)16.; and whether the project unreasonably restricts or infringes upon their riparian rights of navigation, boating, swimming, and view, as proscribed by rule 18-21.004(3)(c). They also question whether Intervenor has standing to participate, but that issue is not dispositive of the primary issues in this case. Petitioners do not contest the issuance of a Wetland Resource Permit. Finally, Respondents and Intervenor question whether Petitioners have standing to initiate this action. The Project Site The project is located on sovereign submerged lands adjacent to the Island, a "naturally occurring sandy beach," as that term is contemplated in rule 18-21.005(1)(c)8. This is true even though portions of the "sandy beach" have eroded over time. The City owns the entirety of the Island. See Joint Ex. 14 and 15. This was not disputed by Petitioners. The Island is a public park, natural preserve, and historic site that is owned and maintained by the City exclusively for public use. Deeds by which the property was conveyed to the City require that it be forever used as a natural preserve and maintained in its natural state. See Joint Ex. 14 and 15. The Island and the area immediately adjacent thereto have a long and significant history dating back to the 1700's. Throughout the 1700's and 1800's, various portions of the Island were used as a careening facility for the repair and maintenance of large vessels. A marine railway was also built. In the late 1800's, a quarantine station was constructed on the Island where people who had contracted yellow fever were isolated. A cemetery exists upon the Island containing the remains of many who perished from the yellow fever epidemic. Also, there were many shipwrecks at the Island, of which some of the remains still exist. Accordingly, there are historic resources and artifacts such as shipwrecks and human remains on and around the Island. The Island has sustained significant erosion over the past 70 years. The northeast shoreline has eroded some 450 to 500 feet during that period of time. There has been a significant loss of vegetation and land mass. Without protection, the Island is in a perilous condition and subject to a permanent breach. The peat bog underlying the Island is vital to the stability of the Island and has been greatly damaged. It requires protective measures, such as those contemplated by the proposed project in order to assure its preservation. Due to the effects of hurricanes and storms, the erosion has substantially increased during the past decade. The erosion has caused the unearthing of and damage to historic artifacts and the salt marsh in Gilmore Bayou. There are clearly visible remnants of the former marine railway on the Island, which are being weakened by current weather events and require protection in order to preserve them. Caskets from the cemetery as well as human bone remains have been unearthed and additional damage will occur without protective restoration efforts. If the erosion continues, there will be more damage to the historic artifacts and the salt marsh will be destroyed. The Project To prevent further erosion and to protect the Island and Gilmore Bayou, the City has applied to the Department for three separate phases of a project to stabilize the shoreline. The first two phases of the project involved the construction of an artificial reef breakwater and the planting of shoreline vegetation. See Joint Exhibit 7a. They have already been approved by the Department and are no longer in issue. The first and second phases were challenged by Petitioners but the cases were eventually settled. See Case No. 09-4870, which involved the second phase. The third phase of the project is being conducted primarily for the maintenance of essentially natural conditions and for the propagation of fish and wildlife. This phase can be described as follows: restoration or nourishment of a naturally occurring sandy beach as contemplated by rule 18-21.005(1)(c)8.; habitat restoration or enhancement as contemplated by rule 18-21.005(1)(c)15.; management activity associated with protection of a park as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a preserve as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a historic site as contemplated by rule 18-21.005(1)(c)16.; and management activity associated with protection of habitat restoration or enhancement as contemplated by rule 18- 21.005(1)(c)16. While the project implicates each of the above provisions, the application and proposed agency action indicate that the letter of consent is granted on the theory that the project is associated with protection of historic sites. See Joint Ex. 4. The third phase is also designed to minimize or eliminate adverse impacts on fish and wildlife habitats and other naturally occurring resources. The project consists of the placement of 16,000 cubic yards of fill material in the area between the existing artificial oyster reef and the shoreline to restore and replace conditions that previously existed. The fill will consist of beach compatible sand that will be approximately six inches to a foot above mean high water. This phase also involves the planting of appropriate native wetland vegetation in the fill area, which will help stabilize the fill. The planting of vegetation in the third phase is separate and distinct from the plantings authorized in the second phase of the project. The project is needed in order to prevent further damage to a public park; public preserve; threatened, endangered, or special concern species of vegetation/habitat; and historic artifacts. These protection efforts were requested and recommended by the Florida Department of State. Petitioners contest only the propriety of the fill materials and the planting of the emergent stabilizing grasses on the fill. The fill portion of the project is located a significant distance from Petitioners' property. The closest portion of the project is estimated to be at least 550 feet from Petitioners' property, while the bulk of the project will take place between some 750 to 1,200 feet from their property. The Proposed Vegetation Planting In the third phase of the project, the City proposes to plant and establish emergent grasses (those that grow in water but partially pierce the surface) and sea grasses, all of which are appropriate native wetland vegetation on the Island. The proposed emergent grasses are Spartina alterniflora (also known as smooth cordgrass) and Juncus roemerianus (also known as black needle rush), which will be used for stabilization of wetlands. The proposed submerged seagrasses are Halodule wrightii (a type of shoal grass) and Ruppia maritime (a type of widgeon grass), which will help stabilize the fill. The smooth cordgrass is native to the Island. It will be planted in the fill area to prevent the fill from eroding. It is expected that once they mature, the height of the plants will not exceed two and one-half feet. Due to the water depth in the area, the shoreline slope, the sediment supply, and the wave action, the smooth cordgrass will not spread outside the proposed project area. Also, it will not interfere with navigation, boating, swimming, fishing, or view. The vegetation will, however, help fishing in the area. The black needle rush is also native to the Island. It will only grow to approximately two and one-half feet in height due to stressful conditions caused by the salt content in the water and wave action. It will not spread beyond the proposed project area and will not interfere with navigation, boating, swimming, fishing, or view. Like the smooth cordgrass, it will enhance fishing in the area. Both Halodule wrightii and Ruppia maritime are native to the Island. Both have slow growth rates, which when coupled with the "high energetics of the system," will hinder their ability to spread outside the project area. Neither seagrass will hinder navigation, boating, swimming, fishing, or view. They will afford a greater opportunity for snorkeling, recreation, and fishing; they will serve as a nursery habitat for finfish and shellfish; they will increase the habitat value of the area; and they will improve water quality. Petitioners submitted no evidence to contradict these findings. They also failed to submit any evidence that the fill material or grasses would spread into any riparian area that might be appurtenant to their Lot 37. The above findings are reinforced by the results of a separate project known as Project Greenshores located across Pensacola Bay from the Island. Project Greenshores involved the restoration of wetlands using dredge material to restore islands that are then protected by the construction of a breakwater and are stabilized by the planting of the same grasses that are proposed for the Island project. The two projects are in relatively close proximity to each other and have essentially the same environment. One difference, however, is that Project Greenshores receives a small source of sediment from stormwater outfalls, which means that it has a higher chance of grasses growing than does the Island. Even with the increased sediment, the grasses at that project have not spread beyond the project area, they have not interfered with navigation, boating, swimming, view, or fishing, and they have enhanced fishing in the area. Historical Artifacts Petitioners contend that the project does not qualify for a letter of consent under rule 18-21.005(1)(c)16. That provision authorizes the Department, acting on behalf of the Board of Trustees of the Internal Improvement Trust Fund, to issue a letter of consent for "management activities associated with . . . historical sites . . . provided there is no permanent preemption by structures or exclusion of the general public." As noted above, the Island has a long and significant history dating back to the early 1700's and there are historic resources and artifacts on the Island. See Finding of Fact 10, supra. When there is an archeological site issue in a permit, the Department typically relies on information from the Division of Historical Resources of the Department of State. See Fla. Admin. Code R. 18-21.004(2)(c)("reports by other agencies with related statutory, management, or regulatory authority may be considered in evaluating specific requests to use sovereignty lands"). Here, the Department relied on information from that agency, which indicates that there are archeological resources at the project site. The Department of State also recommended placing fill over the artifacts to protect them, which will be accomplished by the proposed fill. In addition, the Department relied upon information contained in a survey conducted by Mr. Empie, a registered professional surveyor, to generally show where those artifacts are located. See Joint Exhibit 5, also referred to as the Empie survey. The evidence supports a finding that the project is for management activities associated with historical sites. The record shows that there is strong public support for the project. See Joint Ex. 33. Although many of the artifacts will be covered by the fill, the fill will actually protect them from damage, destruction, theft, and removal. By protecting them, future generations will be able to enjoy the artifacts. No "structures," as that term is defined in rule 18- 21.005(1)(c)16., are part of the project. Therefore, the project will not cause permanent preemption by structures. Contrary to Petitioners' assertion, the project will not exclude the general public from the fill area. The City contemplates that other activities, such as underwater snorkeling, will encourage the public to utilize the project site. The evidence supports a finding that the project qualifies for a letter of consent under this rule. Riparian Lines The Empie survey provides a reasonable depiction of the various riparian lines in the areas adjacent to the proposed project. See Joint Ex. 5. A professional surveyor with the Division of State Lands, Mr. Maddox, agreed that it was a reasonable depiction of the angle of the riparian lines and a "fair distribution of riparian areas," including that of Lot 37. The only property owner adjacent to the Island is Patricia Moreland, who owns Lot 36 and has resided on that parcel since 1956. As noted above, the isthmus meets the northwest boundary line of Lot 36. By executing a Letter of Concurrence, Ms. Moreland conferred upon the City all rights, both proprietary and riparian, that she has with respect to Lot See Joint Ex. 16. Petitioners contend that they own riparian rights appurtenant to their Lot 37, which is to the east of Lot 36. The City and Intervenor dispute this claim and contend that Lot 37 does not adjoin any navigable water and thus there are no riparian rights appurtenant to Lot 37. Assuming arguendo that Lot 37 adjoins Pensacola Bay, it is still separated from the project site by riparian areas appurtenant to the Moreland property (Lot 36) as well as the riparian areas appurtenant to the City property, i.e., the Island and isthmus. The Empie survey, which reasonably depicts the riparian lines in the project area, shows the project site as being approximately 300 feet inside the existing breakwater, which is shown as being no closer than 48.9 feet away from the westernmost riparian line appurtenant to Lot 37. See Joint Ex. The primary portion of the fill site is located around 370 feet from the closest point of the western riparian line appurtenant to Lot 37. Id. No portion of the project is located within 25 feet of the Lot 37 riparian line. Id. Petitioners presented no evidence disputing the riparian areas identified on the Empie survey or otherwise identifying the areas of riparian rights appurtenant to their property. While they engaged the services of Mr. Barrett, a professional land surveyor to prepare a boundary survey, the purpose of the survey was to show that Lot 37 adjoins Pensacola Bay, rather than depicting the riparian areas appurtenant to that lot. See Petitioners' Ex. 1. Infringement on Riparian Rights Rule 18-21.004(3)(c) requires that "activities [in submerged lands] must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland property owners." (emphasis added) Petitioners contend that, even though they do not routinely use their riparian rights, the project will restrict or infringe upon their riparian rights of boating, swimming, navigation, and view. To make this determination, they assert that the appropriate test under the rule is mere infringement, and not "unreasonable" infringement; however, this interpretation is contrary to the plain wording in the rule. The main living floor of Petitioners' residence is approximately 50 feet above sea level. The emergent grasses will be located no closer than 500 feet from the edge of Lot 37 and 600 feet from their residence and are expected to grow only to a height of no more than two and one-half feet. The concern that the grasses will impair Petitioners' view is without merit. Although Dr. Cope initially believed that fill or grass would be placed or planted "all the way up to and abutting our lot 37," this interpretation of the City's plans was incorrect. A photograph taken from his back yard indicated that he could view the northeastern corner of the Island where new vegetation or fill might be placed, but the photograph depicted an area outside of the Lot 37 riparian area. See Petitioners' Ex. 18. While Dr. Cope initially stated that the new emergent grass would "clearly degrade the view from both the house and the shoreline," he later acknowledged that the project would not have any effect upon his view of Lot 37's riparian areas. There are a boathouse and dock in the waters behind Petitioners' house. However, Petitioners submitted no evidence to support their suggestion that the project might cause the water behind Lot 37 to become more shallow and adversely affect boating and navigation. Contrary evidence by the Department and City was unrefuted. Finally, Dr. Cope stated at hearing that he has never been swimming in Gilmore Bayou or Pensacola Bay and has no intention of doing so. His wife offered no evidence that she ever intends to swim in those waters. In summary, the activities undertaken in the project area will not unreasonably restrict or infringe upon Petitioners' riparian rights of swimming, boating, navigation, or view within the meaning of rule 18-21.004(3)(c). Petitioners' Standing Respondents and Intervenor contend that Petitioners lack standing to bring this action for two reasons: that they do not own Lot 37 individually but rather as trustees, and the petition was not filed in that capacity; and that Lot 37 does not adjoin navigable waters. See § 253.141(1), Fla. Stat. ("[r]iparian rights are those incident to land bordering upon navigable waters"). As described by the City's real estate expert, in June 2010, or before the instant petition in this case was filed, the Copes executed two deeds for estate planning purposes, which resulted in "legal title [being] owned part by Dr. and Ms. Cope as to one-half life estate and for Ms. Cope as to one-half for her life estate [and] then the remainder interest is vested in the trustees [of the D. Nathan Cope or Cynthia Russell Cope revocable trust agreements] for the remainder interests." Put in plainer language, this meant that the ownership of Lot 37 is now divided as follows: an undivided 50 percent is owned by the wife as to a life estate and by the wife's revocable trust as to the remainder interest, and the other undivided 50 percent is owned by the wife and husband as to a life estate for the husband's lifetime and by the husband's revocable trust as to the remainder interest. Therefore, there are four entities or persons with an ownership interest in the property: Dr. Cope, Mrs. Cope, Dr. Cope's trust, and Mrs. Cope's trust. The City presented expert testimony regarding the chain of title of Lot 37, beginning in June 1952 when the subdivision was first platted, and running through June 2010, when Petitioners conveyed the property to themselves as trustees of two revocable trusts. According to the expert, the subdivision plat in 1952 reflects a narrow strip of property (described as a hiatus strip) separating the entire subdivision, including Lot 37, from the waters of Gilmore Bayou, Pensacola Bay, and Woodland Lake, a nearby body of water. The strip was a park that was dedicated to the public. See Joint Ex. 1. In 1962, the developer conveyed by quit claim deed the entire strip to the record title holder of each lot in the subdivision. At that time, Lot 37 was owned by the Blaylocks. The expert found that each conveyance of Lot 37 that occurred after 1962, up to and including the Copes' purchase of the property in February 2008, did not include the hiatus parcel. Therefore, he opined that title in the strip property continues to remain with the Blaylocks. Besides his title search, the expert further corroborated this opinion by referring to a topographic survey of Lot 37 prepared in June 2005, see Joint Ex. 2a; a title insurance policy on Lot 37 issued in 2008 when the Copes purchased the property that specifically excludes title insurance for the hiatus parcel; and a recent Santa Rosa County tax bill describing the property without the hiatus parcel. In response, Petitioners contend that the hiatus strip never existed or the 1952 plat is invalid because it failed to comply with section 177.08, Florida Statutes (1951), which required that "all land within the boundaries of the plat must be accounted for either by blocks, out lots, parks, streets, alleys or excepted parcels." Because a dispute over the exact boundary lines of Lot 37 exists, this issue must be resolved in the appropriate circuit court. See § 26.012(2)(g). For purposes of deciding the merits of this case, however, it is unnecessary that this determination be made. Intervenor's Standing Dr. Tamburro currently resides on Lot 34, which faces Gilmore Bayou, and jointly owns the property with his wife. He uses the Bayou to boat and for other recreational purposes. He also uses the Island to swim, walk, and boat. The preservation of the Island is important to him since it serves as a barrier island in protecting his home during storm events. Although Dr. Tamburro's wife did not join in his petition to intervene (but appeared as his counsel), he still has a recognized ownership interest in the property.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the City's application for a Wetland Resource Permit and Letter of Consent to Use Sovereign Submerged Lands. DONE AND ENTERED this 20th day of April, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2011.
Findings Of Fact Respondent, Department of Community Affairs, is the state land planning agency charged with the responsibility of administering the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. The Department has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern pursuant to Sections 380.031(18), 380.032, and 380.07, Florida Statutes. At all times pertinent to this proceeding and to DOAH Case Number 93- 7165DRI, Petitioner, Fred Snowman, owned the real property known as Lot 75, Matecumbe Ocean Beach subdivision, Lower Matecumbe Key, in Monroe County, Florida (the subject property). A building permit issued by Monroe County, described below, for this property was the subject of DOAH Case Number 93- 7165DRI (the underlying proceeding.) The lot is approximately 100 feet wide and, at different points, between 200 and 225 feet deep. The subject property is bounded on the landward side by U.S. 1 and fronts the Atlantic Ocean in an area known as Matecumbe Beach. Matecumbe Beach is a known resting and nesting habitat for marine turtles. This building permit constituted a development order on property within the Florida Keys Area of Critical State Concern. On September 30, 1993, Monroe County issued to Mr. Snowman, as the owner and general contractor, building permit number 9330008850, which authorized the construction on the subject property of a single-family residence containing 2,472 square feet of heated and cooled area, 1,568 square feet of porches, 1,435 square feet of storage enclosure below base flood elevation, and a swimming pool. The authorized construction was to be consistent with the building site plan, which was also approved by Monroe County. On November 18, 1993, the Department timely appealed the subject building permit to the Florida Land and Water Adjudicatory Commission (FLWAC) pursuant to Section 380.07, Florida Statutes. FLWAC referred the matter to the Division of Administrative Hearings where it was assigned DOAH Case Number 93- 7165DRI. A formal hearing was conducted in DOAH Case Number 93-7165DRI in Key West, Florida, on June 30, 1994. Following the formal hearing, the parties were afforded the opportunity to file post-hearing submittals. Thereafter, a recommended order was entered which recommended that FLWAC enter a final order that dismisses the Department's appeal. After the entry of the recommended order, the Department voluntarily dismissed its appeal. FLWAC subsequently entered a final order of dismissal. Petitioner, Fred Snowman, was the prevailing party in DOAH Case Number 93-7165DRI. SMALL BUSINESS PARTY The issue as to whether Petitioner is a "small business party" as defined by Section 57.111(3)(d), Florida Statutes, was disputed by the Department in this proceeding. The parties stipulated that Mr. Snowman meets the remaining criteria contained in Section 57.111, Florida Statutes, for an award of attorney's fees and costs. The following testimony elicited by Petitioner's counsel of the Petitioner was the sole evidence pertaining to the number of employees of the Petitioner: Could you tell us a little bit about your business? What's the nature of your business? Primarily I'm a speculation - spec builder and general contractor in the Florida Keys, and have been since 1973. Q. How many employees do you maintain on a regular basis? A. I mainly have subcontractors. Occasionally when I have a job, I hire for that particular job. But I'm the sole proprietor and I'm the employee. (Transcript, page 9, lines 12-22.) While the foregoing testimony establishes that as of May 15, 1995, Petitioner was the sole proprietor and sole employee of his business, it does not establish that Petitioner had fewer than 25 employees in 1993 when the Department initiated its actions against him. 1/ The following testimony elicited by Petitioner's counsel of the Petitioner pertains to his net worth: Q. What is your net worth? Let me ask you this. Does your net worth exceed a million dollars? A. No. Q. Less than a million dollars? A. Yes. (Transcript, page 9, line 23 through page 10, line 3) The following testimony elicited by Respondent's counsel of the Petitioner on cross examination also pertains to his net worth: Q. When you're identifying your net worth, what exactly are you considering? A. Well, net worth is all my assets minus my liabilities. Q. All of your personal assets? A. Which are far and few between (sic) today. Q. Do you have business assets? A. No. Q. Do you own any property? A. Lot 75. Q. Any property other than Lot 75? A. I own three lots, small lots in Plantation Key. Q. Are they developed or undeveloped? A. No, they're undeveloped. Q. Do you know how much they're worth? A. They're valued at fifteen thousand per lot. Q. They're not on the water? A. Not on the water. Q. Lot 75, do you know what that property's worth? A. That property is worth about a hundred and seventy-five thousand. Q. Without the house on it? A. Without the improvements, yes. Q. How about in its improved condition? A. I would say, in the improved condition, with this home, it would be about five hundred thousand. Q. Okay. Other than the real estate, do you have any personal or business investments, stocks or -- A. No. Q. No? A. Just my condo. (Transcript, page 10, line 8 through page 11, line 13.) There was no other evidence presented as to Petitioner's net worth. While the foregoing testimony establishes that as of May 15, 1995, Petitioner had a net worth of less than two million dollars, it does not establish that his net worth was below that figure in 1993 when the Department initiated its actions against him. SUBSTANTIAL JUSTIFICATION The Department's appeal initially raised several issues. All issues in the underlying proceeding but one were voluntarily dismissed by the Department either prior to the hearing or at the hearing. The only issue litigated at the formal hearing in DOAH Case Number 93-7165DRI was the appropriate setback from the portion of the beach-berm complex located on the subject property known to serve as an active nesting or resting area of marine turtles. Pertinent to this proceeding, Section 9.5-345(3)(f), Monroe County Code, provides: f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds; There was no dispute in Case 93-7165DRI that the turtle nesting setback applied to Mr. Snowman's property. The dispute was how to apply the setback. There was a bona fide factual dispute as to the extent of the beach berm complex on the subject property that should be considered to be "beach berm complex which is known to serve as an active nesting or resting area of marine turtles" within the meaning of the setback ordinance. The Department established that it followed its standard procedures in deciding to appeal the subject development order. The Department maintains a field staff in the Florida Keys that routinely reviews development orders issued by Monroe County for consistency with the land development regulations, the Monroe County comprehensive plan, and Chapters 163 and 380, Florida Statutes. The permit package typically reviewed, and reviewed in this case, includes the permit, a permit conditions sheet, surveys, and site plans. The Department staff usually reviews a biological survey or habitat evaluation index, reviews the County's entire file, reviews aerial photographs and conducts a field assessment. In this case, the Department also looked at records of the Department of Natural Resources and of the Save A Turtle volunteer environmental group. In this case, the Department conducted a field assessment of Mr. Snowman's lot and measured the point it considered to be the landward extent of the turtle nesting setback line. Kate Edgerton, an experienced biologist employed by the Department, measured the point the Department asserted was the landward extent of the turtle nesting setback line. Ms. Edgerton made a good faith assessment of the beach berm complex and considered the property to contain one beach berm complex. (Transcript, DOAH Case 93-7165DRI, page 166, line 17.) Ms. Edgerton testified in the underlying proceeding that she considered herself bound by the definitions in the Monroe County land use regulations and that she believed herself to be applying the pertinent definition when she measured the setback line. (Transcript, DOAH Case 93- 7165DRI, page 163, lines 20-23.) Following field staff review, a report is prepared and forwarded to Tallahassee for review by additonal staff, including the Department's administrator of the critical state concern program. Department staff in Tallahassee review the field staff report and participate in formulating a recommendation as to whether to appeal the permit. The appeal decision is then made either by the Department Division Director or by the agency head. Each material step in the Department's customary practice of reviewing permits was followed in reviewing the subject permit. Section 9.5-4(B-3), Monroe County Code, contains the following definition of the term "beach berm" that was found to be pertinent to the underlying proceeding: (B-3) "Beach berm" means a bare, sandy shore- line with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. The term "berm" is identified in the Monroe County comprehensive plan as . . . a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. A berm is higher in elevation than both the beach and the area landward of the berm. At the formal hearing in the underlying appeal, there was conflicting evidence as to the extent of the beach berm complex on the subject property. The Recommended Order found that there were two distinct ridges located on the subject property. The issue of whether both ridges could be considered part of the "beach berm complex" was one of first impression. Succinctly stated, it was the position of the Department in the underlying appeal that both ridges were in an area of potential habitat on a beach that is known habitat and it asserted the position that both ridges should be considered to be one beach berm complex. The Department asserted the position that the setback should be measured from the landward extent of the second ridge (the more landward of the two ridges). Monroe County had measured the setback from the landward extent of the first ridge. Mr. Snowman agreed with the County's determination of the setback. Mr. Snowman presented evidence that the County had, for several years, applied the setback from the landward extent of the first ridge and argued that, based on the foregoing definitions each ridge should be considered to be a separate beach berm, but that only the first should be considered to be a beach berm. The Department presented evidence that the County had applied the setback provision in an inconsistent manner by measuring from the crest of berms in some cases and measuring from the landward extent of berms in other occasions. The Recommended Order rejected the Department's position and concluded that the definition of "beach berm" contained in Section 9.5-4(B-3), Monroe County Code, and the description of "berm" in the comprehensive plan were unambiguous. Although the Department argued that other provisions of the code and comprehensive plan supported their construction of the setback requirement, it was concluded that the issues should be resolved based on the unambiguous definition of "beach berm". It was also concluded that no deference should be afforded the Department's construction of the term "beach berm" because there is a plain and unambiguous definition of the term that is a part of the Monroe County Code. It was observed that "[w]hile a greater setback may better serve the goals of the comprehensive plan, as argued by the Department, the imposition of a greater setback requirement should come from a change in the Monroe County Code." This observation was made because the Department had found support for its interpretation of the setback requirement from other parts of the code and comprehensive plan. This case involved bona fide disputed issues of material fact and legal issues that were of first impression. It is found that those issues, although resolved against the Department following the formal hearing, were of sufficient merit to substantially justified the Department's actions in initiating the underlying appeal.
Findings Of Fact Stipulated Facts Jim and Paulette Holzinger own Lot 17, Section B, Long Beach Estates, located on Big Pine Key in unincorporated Monroe County, Florida. The property is south of Long Beach Drive. The property is located within the Florida Keys Area of Critical State Concern. See Sections 380.05 and 380.0552, Florida Statutes. Under these statutes, Monroe County adopted a comprehensive plan and implemented it with land development regulations which are consistent with the Principles for Guiding Development found in Section 380.0552(7), Florida Statutes. The Department of Community Affairs approved the County's comprehensive plan in Rule Chapter 9J-14, Florida Administrative Code, and the Administration Commission approved the comprehensive plan in Chapter 28-29, Florida Administrative Code. The County's comprehensive plan is implemented through its land development regulations, codified as Chapter 9.5 of the Monroe County Code. Monroe County is responsible for issuing development orders for land development in unincorporated Monroe County, including these development orders (building permits). The Local Government Comprehensive Planning and Land Development Act, Chapter 380, Florida Statutes, restricts the County from permitting development which is inconsistent with the Monroe County Comprehensive Land Use Plan, Sections 163.3161(2) and 163.3194(1), Florida Statutes. No person may undertake any development within an area of Critical State Concern except in conformity with Chapter 380; Section 380.05(16), Florida Statutes. After the County issued the three related permits, the Holzingers engaged Pinewood Enterprises, Inc., as general contractor, for the construction of their single-family residence. Those permits were rendered to the Department of Community Affairs on July 21, 1992, and the Department issued its notice of appeal of those permits on September 4, 1992. No party disputes the timeliness of the appeal. The Holzingers' lot is vegetated by mangroves, transitional plant species, and beach berm plant species. The site plan, and which was part of the Holzingers' application for the permits, which Monroe County approved, includes the approval of dredging of a portion of Lot 17 and the placement of fill on site to provide driveway access to the single-family residence. The site plan locates the single-family residence in an area of Bay Cedar thicket. The mangroves are located along the north of the lot along Long Beach Drive. Facts Found Based on Evidence Adduced at the Final Hearing The Holzingers' lot is located at the southernmost area of Big Pine Key, and is separated from the rest of the key by a wetland to the north of the property. To its south is the Atlantic Ocean. The lot is approximately 100' x 230' and contains approximately 22,750 square feet from property line to property line. On the lower keys land elevations only extend from sea level to a maximum of approximately five or six feet above sea level. The soil or substrate conditions on the lot are white calcareous deposits which appear to the untrained eye to be sand. It is not quartzite, but deposits from the breakdown of marine grasses or marine algae which have the appearance of sand. There is no caprock on the property. B (1). Habitats Recognized in the Monroe County Plan The Monroe County Comprehensive Development Plan is based upon the Data and Analysis found in volume 1 of the Plan. According to that Data and Analysis, there are different types of habitat found in the Keys. These include salt marsh, salt marsh and buttonwood association, mangrove community, tropical hardwood hammock, and beach berm complex. The most significant one here is beach berm complex; it includes: "bare, sandy shoreline with a mound or ridge of unconsolidated sand that is immediately landward of and usually parallel to the shoreline and beach. The sand is calcareous material that is the remains of marine organism such as corals, algae and mollusks. The berm may include forested costal ridges and may be colonized by hammock vegetation." Section 9.5-4(B-3), Monroe County Code [the land development regulations]. In the Data and Analysis, the County records that on Long Beach Key the most landward area of the berm is tropical hardwood hammock. The low hammocks are upland hardwood forest communities containing species such as blolly, buttonwoods, darling plums, spanish stopper and wild dilly, all of which are found on the vegitation survey of the lot done by a biologist for Mother Nature's Enterprises, Linda Pierce, as part of the Holzinger building permit application. See Section 9.5-4(L-10), Monroe County Code, which defines low hammocks. Low hammocks include berm hammock, and the beach berm association described in the County comprehensive plan includes berm hammocks (Tr. 184). B (2). The Land Use Maps and their Designations The existing conditions map which is part of the Monroe County comprehensive plan designates the area of the Holzingers' property as beach berm association. That map is drawn at the sale of one inch equals 2,000 feet. Similar aerial maps at a scale an order of magnitude smaller (one inch equals 200 feet) also show the land as beach berm with fringing mangroves. These aerial photographs have been overlaid with the Comprehensive Plan's habitat designations for use in the practical application of the land development regulations by County employees. Under the land use regulations found in the Monroe County Code, the County Commission is required to follow the existing conditions map it adopted, Section 9.5-227, Monroe County Code. Under the first paragraph of Section 9.5- 345 the environmental design criteria applicable to development of a parcel of land depend upon the habitat designated for the parcel on the existing conditions map (the map drawn at the larger scale of one inch equals 2,000 feet). Ground proofing of the habitat on the lot done by the Lower Keys' biologist, Diana Stephenson, and by the Department of Community Affairs planner/biologist, Kathleen Edgerton, show that the land is actually beach berm from the ocean to the mangroves, and there is a small area of disturbed saltmarsh landward from the mangroves to the county road which runs down the center of the key. I am not persuaded by the testimony of the biologist for the Holzingers, Mr. Smith, who believes that there is a separate tropical hardwood hammock habitat on the Holzingers' lot. A full habitat analysis would have been required if there were mixed habitats on the lot (Tr. 88, 96) and the Holzingers did not submit one to the County as part of their application. Because the County biologist found no separate low hardwood hammock habitat on the lot, she believed that no habitat evaluation index was required in processing the Holzinger application, and none was done independently by the County. Mr. Smith contended at final hearing that there are several distinct habitats on the single lot. Moving south from Long Beach Drive toward the ocean he first finds a disturbed saltmarsh of approximately 4,000 square feet; then a mangrove community of about 2,500 square feet; then a saltmarsh and buttonwood association of about 2,500 square feet; next a tropical hardwood hammock of moderate quality and finally, closest to the ocean, beach berm complex. This analysis, which designates a separate saltmarsh and buttonwood association waterward of the mangrove community, and then a separate tropical hardwood hammock waterward of the saltmarsh and buttonwood association, fails to give significant weight to the fact that low hammocks are typically found within beach berm complex. While Mr. Smith testified to the square footages for each of the five habitats, he only performed rough calculations for their size, he was not working with, nor did he perform an actual survey which would define the boundaries of the various habitats he believes are present. He readily acknowledged his preliminary habitat analysis was incomplete. Moreover, accepting for the sake of argument that there is a mixed habitat on the lot under the evidence adduced by the Holzingers, a complete habitat evaluation index should have been performed by the Holzingers as a necessary part of their application, since the County biologist did not do one in the belief there was no need for one. The essential problem with the view expressed by Mr. Smith that there are five habitats on this 100-foot lot is his contention that due to the very small changes in elevation through the Keys, one must identify different habitats recognized in the Monroe County comprehensive plan and land development regulations by assessing the predominance of different types of vegitation typical of a habitat. To Mr. Smith, if the vegitation is of a type normally found in a tropical hardwood hammock, and it predominates over the other vegitation, that area must be classified as a tropical hardwood hammock. At that level of generalization, the statement is no doubt true. Neither the land development regulations or the County's Comprehensive Plan require, or even permit, a microanalysis of the vegitation for the purpose of defining multiple habitats on a lot. Taking a broad view, such as that embodied in the existing conditions map, the predominate vegetative and soil conditions on the southern part of the island where Lot 17 is located are consistent with the categorization as beach berm association. The same is true using the aerial maps on which the different habitat designations from the land development regulations have been overlaid. What Mr. Smith has done is to look for small areas within the 100' x 230' parcel to identify areas where tropical hardwood species may be said to "predominate." The obvious purpose of Mr. Smith's division of the lot into small areas is to be able to characterize these uplands species as "predominating." This is essential to justify intensive use of the property. The comprehensive plan and the land development regulations do not permit any use of areas colonized by mangroves, which are wholly protected by a 100 percent open space requirement. This means that 100 percent of the area colonized by mangroves must be maintained in its natural condition and free and open to the sky, Section 9.5-343, Monroe County Code. Open space ratio for saltmarsh and buttonwood associations is .85 but for moderate quality low hammocks is only .60. Beach berm association is highly protected, with an open space requirement of 90 percent. Only 10 percent of the land area waterward of the mangrove habitat, therefore, can be covered with the footprint of the single-family residence and any associated driveway or other access way because it is beach berm complex. Accepting the mangrove line contained in the vegitation assessment submitted by the Holzingers in their application done by Mother Nature's Enterprises, and then using a "planimeter" to measure the area from the mangrove line to the mean high water line on the lot, there is 16,594 square feet of property. Given the 90 percent open space requirement, a very small area of 1,659 square feet may be covered with the footprint of the single-family home, including its porch, eaves, and driveway. The footprint of the house, its porch, and driveway shown on the site plan approved by the County, with the addition of a five-foot clearing zone around the footprint of the house [because it is essentially impossible to clear land only to the footprint of the completed building] reveals that the County's permits would allow the clearing of 2,880 square feet. Even without the five-foot construction zone around the house, porch and driveway, the County permits allow the clearing of 2,172 square feet. It is very difficult to understand how the Monroe County official in charge of the office which issues building permits could have determined that the development proposed by the Holzingers was permittable. That official did not testify. The County biologist for the Lower Keys who did testify, Ms. Stephenson, was adamant that the project was never permittable under the Monroe County land development regulations. The only explanation by which the permit conceivably could have been granted would be to do something the land development regulations do not permit: aggregate the square footage which the code makes available for development on the landward side of the mangroves, in the area of disturbed saltmarsh between the road and the mangroves, and add the usable square footage for that habitat area to the usable square footage on the waterward side of the mangroves, in the beach berm association. But the amount of each habitat which must remain as open space is determined for each habitat type. They cannot be aggregated across habitats, to give some total usable number of square feet, to be cleared anywhere on the property. That would ignore the significance of the separate habitat designations. The 1,659 square feet available for development in the beach berm association must be used only within that habitat, and square footage available for development within the disturbed salt marsh cannot be added to it. Fill Issues The site plan approved by the County permits fill to be used to construct a driveway on the property through the mangrove area and the beach berm area. This is simply an error on the part of the County, for no party disputes that fill is forbidden in these areas. The performance standards in the land development regulations do permit certain piers, docks, utility pilings and walkways over mangrove areas, but no fill is permitted. Section 9.5- 345(m)(1), Monroe County Code (Tr. 139). The Holzingers could receive a permit to build a raised bridge over the mangroves for access to the beach berm association portion of the lot, as has been done on a nearby lot to the west of the Holzingers' lot. They cannot, however, fill the mangroves to create the driveway shown on the site plan the County approved. The building permit the County granted which purports to allow fill in mangrove areas is inconsistent with the County's own land development regulations and cannot stand. The next question is whether there is some alternate means of access to the lot which can be used instead of that permitted. At the final hearing Mr. Smith stated that on a recent visit to the Holzingers' property, he found an old road on the east side of the property which is high land which could serve as a location for a driveway or accessway to the interior of the Holzingers' property. There is, however, actually no old road anywhere on Lot 17. There was an old road on Lot 16, and a bit of the spoil from that road may be found on Lot 17, but there simply never has been a road on the Holzingers' lot which they can use for a driveway. Fill will be required to locate any driveway, and that is inconsistent with the County land development regulations. The only thing the Holzingers can do to overcome this problem would be to build a bridge over the mangrove area and completely avoid the use of any fill. Summary of Findings The scarified or a disturbed saltmarsh area from the county road to the mangrove area is too small to be useful. The Holzingers do not plan to build in that area. Whatever portion of that area which is not required to be open space cannot be "banked" to allow additional clearing in the beach berm association on the waterward side of the mangroves. For all practical purposes, that disturbed saltmarsh area adds nothing to the buildable or clearable area on Lot 17. The mangrove area has a 100 percent open space requirement. Mangroves are a highly protective habitat, which contribute nothing to the buildable area on Lot 17. The remaining portion of the Lot 17 waterward from the mangrove area to the mean high water line is too small to permit the construction and erection of the house and driveway permitted by the development orders (building permits) issued by Monroe County. The buildable area in the beach berm association is no more than a total of 1,660 square feet for the house, its porch, the driveway. The County has issued a permit to use 2,880 square feet of that habitat (including an allowance for a construction zone), or at least 2,172 square feet, assuming the location of the house, porch, and an eight-foot wide driveway and no construction clearing around the footprint around the house/porch. This fails to meet the 90 percent open space requirement found in the Monroe County Code. The building permits issued by Monroe County to the Holzingers are therefore invalid. To obtain valid permits, the Holzingers must substantially reduce the footprint of the house, including an allowance for a construction clearing zone. A house that small may be undesirable, but it could be permitted. What the County has attempted to permit, however, is invalid under its own regulations.
Recommendation It is RECOMMENDED that development approval for the subject lot be denied, unless the applicant presents, and the County and the Department approve, a revised permit and site plan which demonstrates compliance with the mandatory open space requirements for the beach berm and mangrove habitats, and which eliminates the placement of fill in the beach berm complex and the mangrove wetlands on site. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of July 1993. WILLIAM R. DORSEY, JR. 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 9th day of July 1993. APPENDIX The Findings of Fact proposed by the Department have been generally adopted, although the long quotation from Volume I and II of the County Comprehensive Plan are not essential or necessary. See proposed finding 10. The Respondents submitted no proposed Findings of Fact. COPIES FURNISHED: Stephanie M. Callahan Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Theodore W. Herzog, Esquire 209 Duval Street Key West, Florida 33040 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission Executive Office of the Governor 311 Carlton Building Tallahassee, Florida 32301
The Issue The issues are whether the Department of Environmental Protection (DEP) should: grant the application filed by IMC Phosphates Company (IMC) for modification of the approved Conceptual Reclamation Plan (CRP) for the Four Corners/Lonesome Mine, IMC-FCL-CPD; and issue a Consolidated Environmental Resource/Wetland Resource Permit No. 0155875-004 (Draft Permit) to mine phosphate and reclaim land on the Altman Tract in the northeastern corner of Manatee County.
Findings Of Fact The Parties Charlotte County is a political subdivision of the State of Florida pursuant to Article VIII, Section 1 of the Florida Constitution. Charlotte County's central dominating feature is the Charlotte Harbor Estuary. The Harbor is its major tourist attraction and is essential for its economy and quality of life. The Harbor has a recreational value of $1.8 billion and a total value of $6 billion to the local economy. The County has taken steps to protect Charlotte Harbor. Its comprehensive plan contains policies protecting the Harbor. It has spent $4 million to purchase lands along the Harbor for environmental preservation and passive recreation, and plans to spend another $79 million for the same purpose. The County has enacted septic tank regulations to protect the Harbor, which are stricter than state regulations, and is in the process of replacing septic tanks with a central sewer system. The County spent $100 million in the early 1990s to acquire a private water and sewer utility serving its citizens, and tens of millions of dollars expanding the sewer system, and has budgeted about $60 million to further expand its sewer system. The County has also taken legal action to protect the quantity and timing of flow and water quality in the Peace River and Charlotte Harbor, and was found to have standing and prevailed in those legal proceedings. The County owns and operates a water utility system and is a founding member of the Authority, a regional water provider. The County's water system supplies potable water to 109,000 persons, and is expected to supply 140,000 persons within the next 20 years. Now and for the foreseeable future, the County obtains all of its potable water from the Authority, and its sole source of water is the Peace River. DEP is an executive agency of the State of Florida under Article IV, Section 6, of the Florida Constitution. DEP administers the Environmental Resource Permit program pursuant to Chapter 373, Florida Statutes, for various activities, including phosphate mining. DEP also administers the Phosphate Land Reclamation Program pursuant to Chapter 378, Florida Statutes, and Chapter 62C-16, Florida Administrative Code. IMC is a general partnership authorized to do business in the State of Florida and is the applicant in these proceedings. Intervenors, George W. Mullins, Jr., Georgene Mullins Henderson, and Michael Graham Mullins, are the owners of a fractional mineral interest underlying portions of Sections 13, 14 and 24, Township 33 South, Range 22 East, Manatee County, Florida, that make up approximately the southern half the Altman Tract. Their mineral rights extend from the ground surface down, subject to IMC's right to mine phosphate and other sedimentary materials in the first 150 feet below the ground surface. This legal interest entitles the Mullins Family to access those lands at any time for purposes of mineral exploration and mining. The Mullins Family has not consented to IMC's proposed mining and reclamation. Required DEP Permits/Approvals, IMC Applications, Notices, and DEP Review Chapter 373, Florida Statutes, requires that persons seeking to carry out construction activities in or seeking to alter certain waters or wetlands must obtain an ERP. By law and interagency agreement, ERPs for proposed phosphate mining operations are issued by DEP and are processed and evaluated by that agency's Bureau of Mine Reclamation. Chapter 378, Florida Statutes, requires that persons mining phosphate rock reclaim the land pursuant to a CRP approved by DEP. Under Section 373.414(15), Florida Statutes, activities associated with phosphate mining operations included in a CRP application submitted prior to July 1, 1996, "shall continue to be reviewed under" the previous statutory scheme and rules governing wetland resource permits (WRPs), instead of current ERP statutes and rules. IMC filed an application for an ERP for the entire Altman Tract on October 5, 2000. (IMC Ex. 3). The application complied with the information requirements contained in Section 373.413(2), Florida Statutes, and Rule 40D-4.101(1). The portion of the Altman Tract lying in Section 1, Township 33 South, Range 22 East, was included in IMC's previous CRP for the Four Corners Mine (IMC-FCL-CPC), application for which was submitted prior to July 1, 1996. For that reason, it "shall continue to be reviewed under" the statutory scheme and rules governing WRPs. No separate WRP application form was submitted for the Section 1 area because the entire Tract was addressed in the ERP application filed by IMC; and no separate WRP application filing fee was demanded. IMC and DEP take the position that this procedure was authorized by Section 373.1131, Florida Statutes. There was no evidence that either IMC or DEP published notice that DEP had received the ERP application. DEP reviewed the ERP application and issued a series of requests for additional information to which IMC responded on October 19, 2000, December 29, 2000, February 11 and 15, 2001, and March 6, 2001. Thereafter, minor revisions to the application suggested by DEP were submitted by IMC. On April 9, 2002, IMC filed an application to modify the existing CRP for the Four Corners/Lonesome Mine to apply to the entire Altman Tract, not just Section 1. (IMC Ex. 14). Notice of DEP's receipt of this application was published in the Bradenton Herald, a newspaper of general circulation in Manatee County, on April 19, 2002. (IMC Ex. 15). On May 30, 2002, DEP filed its Notice of Intent to Issue a Consolidated ERP/WRP (the Draft Permit) and also gave notice of its intent to approve the application to modify the Four Corners CRP. On June 4, 2002, IMC published notice of both of these actions in the Bradenton Herald. (IMC Ex. 17). DEP's Notice of Intent ("NOI") was accompanied by the Draft Permit. (IMC Ex. 12). The Draft Permit would authorize IMC to mine or disturb 683.6 acres of wetlands and water bodies for phosphate mining and associated activities. Approximately 1,534.9 acres of uplands would also be mined or disturbed by phosphate mining activities. After reclamation, the Tract would contain approximately 788.4 acres of wetlands provided as mitigation for impacted DEP jurisdictional wetlands, 78.4 acres of wetlands preserved throughout mining, and 1,410.1 acres of uplands. An additional 90 acres of wetlands would be reclaimed as required by the Corps of Engineers for additional mitigation. The Draft Permit also contains numerous specific conditions requiring special mitigation efforts, defining mitigation success criteria, and providing monitoring and reporting requirements. Overview of the Peace River Basin and Phosphate Mining The Peace River Basin is nearly 2,500 square miles in size, stretching from the high sandy ridges in central Florida to Charlotte Harbor. The basin is dominated by the Polk Upland to the north and the DeSoto Plain to the south. The Peace River flows from its source in Polk County south and southwesterly through Hardee, DeSoto, and Charlotte Counties to Charlotte Harbor. The Peace River is fed by six primary tributaries, one of which is Horse Creek. Phosphate rock has been mined in the Peace River Basin for decades. In west central Florida, phosphate is mined from a "matrix" consisting of one-third phosphate rock, one-third sand, and one-third clay. (The average thickness of the matrix on the Altman Tract is approximately 16 feet.) The matrix layer is buried under a layer of sandy soils referred to as the "overburden." (The overburden thickness on the Altman Tract is approximately twenty-seven feet.) Topsoil and vegetation cover the overburden. Mining the phosphate rock requires removal of the overlying vegetation, topsoil, and overburden. As a result, phosphate mining in this area is accomplished through utter destruction of the local natural environment from ground surface down to a depth of approximately 50 feet. Other mining activities include transportation of the matrix to a "beneficiation plant," where the phosphate rock, sand, and clay are physically separated. The phosphate rock is temporarily stored and then transported for additional processing at facilities required to convert it to fertilizer. Byproducts of the mining process included large quantities of sand and clay. Early mining practices, like most early industrial, commercial, residential and other development activities of man, were insensitive to environmental impacts. Water quality was adversely affected, water flow declined, and wildlife and fish and their habitat was lost. Other human activities in the Peace River over the years added to the harm caused to the environment by early phosphate mining. In the past 30 years, Florida has implemented various environmental regulations, and mining practices have changed. These changes have reduced, but have not eliminated, the impacts of phosphate mining on the environment. Modern mining still has a devastating impact on the local natural environment. Large electrically-powered draglines are used to remove the overburden, topsoil, and vegetation to expose the phosphate-bearing matrix. These same draglines then extract the matrix and place it in depressions created at the mine sites, which are called "wells" or "pits." The matrix is mixed with water in the depressions to form a slurry, which is conveyed, hydraulically to the beneficiation plant. But efforts have been made to reduce water quantity and water quality impacts downstream during mining, primarily through use of ditch and berm recharge systems. See Findings 65, 80-86, supra. Activities at the beneficiation plant also were regulated to reduce environmental impacts. In addition, since July 1, 1975, phosphate mining companies have been required to reclaim all lands mined. Mandatory reclamation attempted to further reduce the long-term impacts of modern phosphate mining on water quantity, water quality, and wildlife and fish and their habitat. As environmental regulations became stricter, it became increasingly difficult to mine for phosphate in Florida, even using modern mining techniques and mandatory reclamation, as it was being implemented. In 1986, the Florida Legislature enacted the "Phosphate Land Reclamation Act." In it, the Legislature found: Florida is endowed with varied natural resources that provide recreational, environmental, and economic benefit to the people of this state. The extraction of phosphate is important to the continued economic well-being of the state and to the needs of society. While it is not possible to extract minerals without disturbing the surface areas and producing waste materials, mining is a temporary land use. Therefore, it is the intent of the Legislature that mined lands be reclaimed to a beneficial use in a timely manner and in a manner which recognizes the diversity among mines, mining operations, and types of lands which are mined. Section 378.202(1), Florida Statutes. Based on this legislative finding and policy decision, phosphate mining was permitted, so long as it complied with applicable statutes and rules. DEP was directed to develop rules "to simplify and coordinate regulation" and to enter into memoranda of understanding "to eliminate duplication, to simplify the processing of reclamation applications, and to maximize the effectiveness of the regulatory process." Section 378.202(2), Florida Statutes. Among other things, reclamation rules were to "require the return of the natural function of wetlands or a particular habitat or condition to that in existence prior to mining." Section 378.207(1), Florida Statutes. Restoration was defined by statute to mean "the recontouring and revegetation of lands in a manner, consistent with the criteria and standards established under this part, which will maintain or improve the water quality and function of the biological systems present at the site prior to mining." Section 378.203(10), Florida Statutes. Since 1962 long-term average rainfall in the Peace River Basin has declined. Based on data recorded at stations in Bartow, Wauchula, and Arcadia, the annual average rainfall was 55.48 inches from 1933 to 1962. From 1963 to 2001, the annual average rainfall was 50.61 inches, or a 4.87-inch decline in annual average rainfall between the two periods. Lower rainfall, together with phosphate mining and other anthropogenic factors, has resulted in a decline in stream flow in the Peace River since 1962. From 1963 to 2001, stream flow at the Arcadia Gauging Station has declined by 458 cubic feet per second (cfs), or approximately 300 million gallons per day (mgd). This decline is approximately the amount of water consumed by 1.5 to 2 million people. There has been a decline in the number and distribution of fish species in the Peace River in the last 50 years or so. Dr. Fraser, Charlotte County's expert ichthyologist, noticed that the number and distribution of fish species in the modern Peace River is similar to the Alafia River and the Everglades. This was surprising to him. The Alafia River is a small watershed that would not be expected to have as many fish species as the much larger Peace River and the Everglades, which is a flat, low flowing system, and cannot be expected to have the abundance of fish habitat provided by the 105-mile long Peace River. Dr. Fraser would have expected the number and distribution of fish species in the Peace River to be more like the Kissimmee and Withlacoochee Rivers. This prompted him to research the number and distribution of fish species in the historical Peace River for comparison with the modern Peace River. He found that the historical Peace River had 45-48 fish species in the Upper Basin and 32-35 fish species in the Lower Basin (similar to the Kissimmee and Withlacoochee Rivers); in comparison, the modern Peace River has 23-27 fish species in the Upper Basin and 32-39 fish species in the Lower Basin. In other words, Dr. Fraser found that the modern Peace River lacks approximately 20 fish species that had once been abundant in the river system 50 or so years ago. In 1969, Ware and Fish produced a report documenting a 25-mile segment of the Upper Peace River as having riffles, and deep pools, relatively fast moving water and significant beds of submerged aquatic vegetation called tape grass. However, a 2002 report published by Southwest Florida Water Management District (SWFWMD) staff in connection with proposed minimum flows did not find any tape grass in the system and documented that flow in this portion of the river is sluggish, with parts drying out seasonally. Dr. Fraser believes that the decline in freshwater flow is the primary cause of the reduction in the number of fish species found in the Peace River. Charlotte Harbor is the estuary formed by the confluence of the Peace and Myakka Rivers. It provides critical habitat for a wide variety of wildlife, including endangered and threatened species and species of special concern. It has been designated an Outstanding Florida Water and an Aquatic Preserve by the State of Florida. See Florida Administrative Code Rules 18-20.004 and 62-302.700. In 1995, it became the sixth estuary to be selected an Estuary of National Significance by the U.S. Environmental Protection Agency ("EPA"). The major freshwater input to Charlotte Harbor is the Peace River. The salinity dynamics of the Lower Peace River and Charlotte Harbor are affected by flow in the Peace River. According to Dr. Ahsan, who was called by IMC and accepted as an expert in the fields of environmental hydrodynamics and estuarine physics, a reduction of 20 percent or more in the flow of the Peace River will cause a shift upstream of the salinity distribution in Charlotte Harbor. Since flow in the Peace River has declined by more than 20 percent since 1963, it would follow that salinity has shifted upstream since 1963. It is not clear exactly how much of the decline in stream flow in the Peace River is from anthropogenic factors, including phosphate mining. Anthropogenic factors probably do not account for as much as 75 percent of the decline, as suggested by Charlotte County's expert hydrologist, Mr. Phil Davis. Several studies would support the testimony of IMC's expert hydrologist, Dr. John Garlanger, who believes that more like 11-12 percent of the decline should be attributed to anthropogenic factors and that 10-20 percent of the decline from those factors can be attributed to phosphate mining. The County presented evidence that DEP thinks more study is needed to better quantify the impact of individual anthropogenic factors, including phosphate mining, on the decline in stream flow in the Peace River. But DEP called no witnesses to give opinion testimony during the hearing in this case on this or any other issue in the case. In comparison to the Peace River, Horse Creek is relatively unimpacted. It not only has good water quality, it also has fast-flowing water, and it provides a refuge for fish species that are no longer found in abundant numbers in the Peace River. It has an extensive drainage system that is almost 45 miles long. From the Altman Tract, Horse Creek flows south until it joins the Peace River approximately 41 miles downstream from the Altman Tract boundary. The Peace River then empties into Charlotte Harbor approximately 51 miles from the Tract. Historic and Current Conditions at Altman Tract Location The Altman Tract is in the northeastern corner of Manatee County. It encompasses a total of approximately 2,367 acres, all in Township 33 South, Range 22 East. The bulk of the Tract is in the shape of a triangle; a small "tab" is attached to the southeast corner of the "triangle" and extends south. The eastern boundary of the Tract is the Manatee-Hardee county line; the Fort Green Mine is adjacent to the eastern boundary. The property is bounded on the north and west by State Road (SR) 37. IMC's Four Corners Mine is across SR 37 from the Tract. All of the lands to the north, east, and west of the Tract have been mined and are being reclaimed. The southern boundary of the "tab" attached at the southeast corner of the "triangle" is SR 62. Otherwise, the land to the south of the Tract is owned by Manatee County. Manatee County acquired this land from IMC in a swap for some land the County owned on the Altman Tract so as to eliminate IMC ownership of land in the watershed of the Manatee River and to consolidate the County's land holdings in the area. The northern point of the Tract consists of the southeast half of Section 1. Directly to the south is Section 12, which is included in its entirety in the Tract. To the west of Section 12 is the southeast half of Section 11; to the south of it is Section 13, almost all of which is included in the Tract. To the west of Section 13, the Tract includes roughly the northeast half of Section 14. The "tab" attached at the southeast corner of Tract is part of Section 24. Horse Creek on the Tract The Altman Tract contains what is left of the headwaters of Horse Creek. Historically, the headwaters of Horse Creek consisted of a series of wetlands connected by natural swales and sloughs that extended north of the Altman Tract. When conditions were wet enough, water flowed through these headwater wetlands, sloughs, and swales and onto Section 1 of the Altman Tract from the north, then flowed southwest out of Section 1 and onto what is now the Four Corners Mine. It then flowed through another series of wetlands to the south before re-entering the Altman Tract at the location where box culverts now cross under SR 37 in Section 11. From there, water flowed south on the Altman Tract and meandered through an area of shallow sloughs to a large marsh, now known as the Central Marsh on the Altman Tract. Water flowed slowly through the Central Marsh towards the east and through a series of braided channels which continue east and form a deeper channel of the Horse Creek to the east of the Central Marsh. Near the eastern boundary of the Altman Tract, Horse Creek turns towards the south, where it exits the Tract near its southeast corner. Just before Horse Creek exited the Tract, another stream leading from wetlands to the south and west on the Tract joined the main Horse Creek stream. Man's activities have altered the historic Horse Creek headwaters. By 1940, a straight, shallow ditch was scraped between the box culverts and the Central Marsh, apparently to speed the drainage of water away from SR 37 and into the Central Marsh. This ditch coincided in some but not all places with the natural, meandering watercourse; as a result, water flows through both the ditch and the natural meandering watercourse. More recently, the natural headwaters to the north and west of the Altman Tract were eliminated as a result of phosphate mining on the Four Corners Mine, which significantly reduced the size of the watershed upgradient of the Altman Tract. However, water still flows onto the Altman Tract from the location of the box culverts under SR 37. To the east of the Altman Tract, the Fort Green Mine interrupted the flow from the wetlands on the Tract to the south and west of where Horse Creek now exits the Tract through seven culverts underneath an access road on the Fort Green Mine. IMC and DEP take the position that Horse Creek itself does not include the Central Marsh or anything upgradient of the Central Marsh. But the greater weight of the evidence is to the contrary. Notwithstanding the Four Corners Mine, water still flows into the Altman Tract from off-site through the box culverts under SR 37, continues to and through the Central Marsh, and exits at the southeast corner of the Altman Tract. Central Marsh The Central Marsh is a large, varied marsh system. The interior of the system is shrub marsh. Freshwater marshes surround the shrub marsh, and wet prairie surrounds the freshwater marshes. The Central Marsh overall is a very high- quality, diverse wetland system. The shrub marsh portion of the Central Marsh also is of high quality. IMC's botanist, Dr. Andre Clewell, testified that the Central Marsh was a large, mixed shrub marsh that was getting very woody and, citing the presence of red maple, was converting into a forested swamp. At one point, he went so far as to characterize it as an "impenetrable thicket" and a "vegetated desert" serving no wetland functions. This was a mischaracterization. Dr. Clewell's testimony was countered in this and several other respects by the testimony of the County's witness, Kevin Erwin. Retained in January 2003 after illness limited the effectiveness of the County's intended witness, Jeremy Craft, Mr. Erwin was able to inspect the Altman Tract for three days in February 2003 as part of discovery in this case. During that time, Mr. Erwin was able to gather information demonstrating that the Central Marsh is not one, large "vegetated desert." IMC's other expert wetlands biologist, Dr. Douglas Durbin, also declined to concur with Dr. Clewell's assessment, rating the Central Marsh as a medium-to high-quality wetland. Other Wetlands and Uplands: Zonation In addition to Horse Creek and the Central Marsh, the Altman Tract consists of a mosaic of other high-quality, interrelated wetlands and uplands, all with high-quality native vegetation and only minor man-made impacts. There are deep marshes with extended hydroperiods, shallow marshes with moderate hydroperiods, and wet prairies with very short hydroperiods. There are bay swamps and mixed forested wetlands. There are expansive areas of palmetto prairie. There are herbaceous and grassy uplands prairies. There are some scrub and live oak. There are very few nuisance, exotic, or problematic species on the Altman Tract. All the wetlands on the property exhibit "zonation," a concept introduced to the hearing through Mr. Erwin's testimony. "Zonation" describes essentially subtle changes that result as topography gradually and continuously changes, i.e., "changes in micro-topography." As a result of "zonation," many of the high- quality deep freshwater marshes on the Altman Tract give way to high-quality shallower marshes around the perimeter of the deep marshes, which in turn give way to high-quality wet prairie bordering the shallow marshes. Each of the different wetlands making up this mosaic has its own distinct hydroperiods. Adding to the diversity, adjacent uplands generally are diverse, high- quality native grasslands and other high-quality native upland habitats, including palmetto prairie. The result is a mosaic of a variety of slightly different, but interrelated high-quality native habitats on the Tract. Agricultural Ditches IMC emphasized the existence of agricultural ditches and the impacts of cattle grazing on the Altman Tract. In fact, while there are some agricultural ditches on the property, they are not extensive. In addition, the ditches on-site are mostly shallow, scraped ditches connecting existing wetlands. They are not designed to and do not lower the water table on-site. In addition, they do not appear to have been maintained, much less improved, in the 50 or more years of their existence. Cattle grazing has occurred on the Tract, but it has not been intensive. Included among the ditches on the Altman Tract are some 4.8 miles of first-order streams. A first-order stream is the channel that continues from the headwater to the first confluence. First-order streams are important because they produce the biological energy for the system. Additionally, they reduce downstream nutrient loading by sequestering and reducing the movement of nutrients. IMC's Use of FLUCFCS As part of its applications, IMC used the Florida Land Use Cover Forms Classification System (FLUCFCS) to characterize and map the Altman Tract. Mr. Erwin disagreed with IMC's mapping in many respects. It appears that many of Mr. Erwin's disagreements simply reflected a preference for more precision, both in terms of the level of classification used and in terms of the mapping detail. But some of IMC's mapping could lead to significant misunderstandings as to the nature of existing conditions on the Altman Tract. According to IMC's mapping, approximately 236 acres of shrub marsh are on the Tract. Mr. Erwin thought about half that amount of acreage actually was shrub marsh. Much of the difference was in the mapping of the Central Marsh--IMC's mapping made the shrub marsh seem much larger than it is by failing to distinguish the freshwater marsh surrounding it. According to IMC's mapping, approximately 85 acres of wetlands on the Altman Tract are "improved pasture." Actually, there is no improved pasture on the Altman Tract. What IMC mapped as "improved pasture" actually is mostly high-quality wet prairie. IMC also mapped 869 acres--about 30 percent of the site--as mixed rangeland. Actually, there is no mixed rangeland on the Altman site. Instead, there are separate and discrete areas of mostly high-quality native grasslands and palmetto prairies. IMC's WRAP Assessments of the Tract IMC evaluated the wetlands on the Altman Tract using a modification of the South Florida Water Management District (SFWMD) Wetland Rapid Assessment Procedure (WRAP) developed for use in SWFWMD. While the WRAP scores confirmed that the wetlands on the Altman Tract were not seriously degraded, they substantially and improperly understated the quality of the on- site wetlands. One of several factors in IMC's understatement of the Tract's WRAP scores was the inaccurate FLUCFCS mapping. In addition, it does not appear that enough credit was given for the high quality of adjacent uplands and other wetlands. There also were questions as to the level of training of those conducting the WRAP scoring for IMC, and whether they spent enough time on the Tract and viewed enough of the Tract to give proper and accurate scores. Water Quality Water quality on the Altman Tract appears to be very good. However, IMC has not sampled the water quality there. Instead, it provided DEP with water quality samples from a point in Horse Creek downstream from the property. Based on those samples, IMC represented to DEP that water quality on the Altman Tract was typical for a rural stream in this region of the State in a sub-basin impacted by agricultural use. Wildlife and Fish Habitat The Altman Tract provides good wildlife habitat. Various portions of the Tract are utilized by listed species, including: bald eagle (a nesting pair), Florida scrub jay (1-2 families); gopher tortoise, eastern indigo snake, Florida sandhill crane, Florida mouse, and Southeastern American kestrel. Other animals using the Tract include numerous wading birds; round-tail muskrats (one of few wetland-dependent small mammals); otters; and alligators (a species of special concern). There are red-cockaded woodpecker cavities on the Tract. IMC characterized the cavities as abandoned, but it is possible that they were inactive at the time. There also was other suitable red-cockaded woodpecker habitat on the Tract. During three days spent on the Altman Tract in February 2003, the County's consultants noted the presence of approximately 70 species of birds, 8-10 species of reptiles, and 5-6 species of amphibians. The County's consultants did not have the time to conduct an adequate, comprehensive wildlife survey. IMC instituted a wildlife survey of the Tract prior to initiating the formal permit application process. IMC's survey was more extensive than the County's, but the time spent on the Tract by IMC's consultants was inadequate for the survey to be considered truly comprehensive. It does not appear that any dawn-to-dusk surveying was conducted; and none of the surveying was done at night, when surveys for some species one might expect to be found on the Tract should be conducted (such as amphibians). More abundance and diversity of wildlife probably use the Tract than suggested by the surveys in evidence. Common species of generally small fish can currently occupy the wetlands, streams, and ditches on the Altman Tract that are sufficiently inundated and sufficiently connected to permanent waters to allow fish to exist. IMC reported to DEP that no listed or otherwise unusual or unique fish species exist in this region of Florida and that there were none on the Altman Tract. However, no fish sampling data was collected from the Altman Tract for submission to DEP. In the three-day period of time they had to inspect the Altman Tract, Charlotte County's witnesses observed 402 acres of fish habitat, including 27 acres exhibiting flow. Potentially, there may be another 281 acres of marsh and swamp that provide habitat for fish on the property. This additional acreage seemed like suitable fish habitat to Dr. Fraser, but he either did not see any fish or did not look there. It is possible for fish using habitat on the Altman Tract to swim down Horse Creek into the Peace River. Some fish species do not seem to be found in the Peace River any longer, but are or may still be found in the better fish habitat of the more swiftly-flowing Horse Creek. In addition, some fish species are predisposed to now rarer headwaters like those found on the Altman. IMC's Proposal to Mine and Reclaim the Altman Tract As previously found, the mining of the Altman Tract would be an extension of the IMC Four Corners Mine mining operation to the west of the Tract. Beneficiation, including clay settling ponds, and other processing activities will occur off-site at facilities already approved and operating or under construction. No approvals are needed or requested for those activities. IMC seeks to mine and otherwise disturb 683.6 acres of DEP jurisdictional wetlands and water bodies for phosphate mining and associated activities on the Altman Tract. Approximately 1,534.9 acres of uplands also would be mined and otherwise disturbed by phosphate mining activities. IMC is proposing to preserve 61.1 acres of flow-way area of Horse Creek to the east of the Central Marsh, together with two connected forested bay swamp wetlands in that area. IMC also will not carry out any mining-related activities within a 750-foot radius of an eagle nest on uplands on the western portion of the Tract near the Central Marsh. In addition, no mining-related activity will take place within 1,500 feet of the nest during the nesting season (approximately May 15 through October 1), in compliance with United States Fish and Wildlife Service (USFWS) regulations. Mining is planned to occur over a period of 12 years in accordance with a detailed annual mining and reclamation sequence set forth in the Draft Permit. Generally, mining will begin in the north and proceed to the south. After mining is concluded in a mining block, reclamation will begin in that block while active mining continues elsewhere on the site. At the outset, IMC proposes to construct a ditch and berm recharge system around the perimeter of the site and along the northern boundary of the areas to be preserved and the Central Marsh to protect these areas from the impacts of active mining occurring to the north during the early years of the mining sequence. Before mining begins in the southern half of the Tract later in mining and reclamation sequence, a ditch and berm recharge system will be constructed to the south of the preserved areas and along the southern boundary of the Tract. IMC also proposes to construct and operate an alternate flow-way ("AFW") at the Altman Tract. The AFW will be constructed at the outset and will divert water from where it enters the Tract through the box culverts under SR 37 and convey it along the western edge of the property boundary back to the existing Central Marsh. After the AFW is in operation, IMC plans to mine the area containing the existing watercourse conveying water between SR 37 in Years 3 and 4, while maintaining off-site flow to the existing Central Marsh and the preserved area down-gradient. The AFW will continue to provide off-site flow to those areas during Years 4-6, while IMC reclaims a Replacement Central Marsh (also known as Mitigation Marsh 561) to the north of the existing Central Marsh. The Replacement Central Marsh is to be connected to the preserved area during Year 7. During Years 6-8, the AFW will be providing off-site flow to both the existing Central Marsh and the Replacement Central Marsh to the north. In Year 9 of the sequence, off-site flow to the existing Central Marsh is to be discontinued, and mining would begin in that area. However, under Specific Condition 10 of the Draft Permit, this will only occur if "all of the success criteria for the West Fork of Horse Creek headwater marsh, identified in Permit No. 0142476-003 (Manson Jenkins) have been met within nine years, with a minimum of two years without intervention, from issuance of this permit unless another date has been approved in writing by the Bureau. In addition, the up-front mitigation of Mitigation Marsh 561 shall be completed according to Specific Condition 11 before the severance and mining of the existing marsh." If the date is extended, mining in the existing Central Marsh will not be allowed to proceed, and the AFW would have to continue to have to provide off-site water to both the existing Central Marsh and the Replacement Central Marsh. When the existing Central Marsh is mined, the AFW will not be needed any longer, and its location will be mined and then reclaimed. At that time, water from off-site will enter the Tract through the same box culvert and be routed directly into and through the Replacement Central Marsh. Other areas of the Tract will be mined and reclaimed in accordance with the detailed annual mining and reclamation sequence. Mining is planned to occur over a period of 12 years, and reclamation is projected to be fully completed within the projected overall 17-year life of the project. Proposed reclamation will be accomplished using two techniques--one for areas to be reclaimed as uplands and one for areas to be reclaimed as wetlands. In both cases, the voids created by the mining operations will be filled with sand generated in the beneficiation process. For uplands reclamation, the sands will be covered with the overburden that has been cast aside during the mining operation, which will then be carefully contoured to achieve the desired upland topography. Revegetation will follow using three techniques: direct seeding (using native seed sources as well as commercial seeds); placement of salvaged topsoil; and planting with available nursery stock. IMC witnesses testified to IMC's intent to promote successful revegetation of the upland areas by engaging in an aggressive effort to control potential invasions by nuisance or exotic species. IMC witnesses also testified to IMC's agreement to an aggressive uplands nuisance species control program and to special techniques for upland revegetation to improve long-term function. However, the Draft Permit does not appear to include such an agreement as a permit condition. IMC characterized control of nuisance and exotic species in the uplands as being not required by rule. But the weight of the evidence was that nuisance and exotic species will not only invade the uplands but from there will also invade wetlands during dry conditions. For that reason, wetland reclamation will not succeed if nuisance and exotic species are not controlled in the uplands. With regard to wetlands reclamation, following sand placement, IMC will establish precise contours and elevations to assure that wetland contours are built as designed. The land surface will then be prepared for planting by "muck inoculation" in which surface soils taken from a natural wetland system are imported to provide a fertile layer for vegetative growth and to "jump start" the plant community with the seed sources and different types of root stock that are contained in the muck. (For this to be effective, the muck should not contain seed and root stock of nuisance and exotic species, which are limited to 10 percent of wetland coverage under the monitoring and maintenance program required by Special Condition 13 of the Draft Permit.) Post-reclamation, the Tract would contain approximately 788.4 acres of wetlands (749 acres of herbaceous and 39.5 acres of forested) provided as mitigation for impacted DEP jurisdictional wetlands, 78.4 acres of wetlands preserved throughout mining, and 1,410.1 acres of uplands. An additional 90 acres of herbaceous wetlands would be reclaimed to meet requirements of the Corps of Engineers for additional mitigation for loss of isolated wetlands. Of the total wetland acreage post-reclamation, 721 acres will be freshwater marsh (code 641), of which 658 will be DEP jurisdictional. These will be relatively deep marshes with long hydroperiods. Only 52 acres will be shrub marsh (code 646) post-reclamation, of which only 11 will be DEP jurisdictional. According to IMC's FLUCFCS mapping, only 360 acres of freshwater marsh currently exist on the Altman Tract (of which 328 acres is DEP jurisdictional); Mr. Erwin generally concurred with this acreage total (while noting that more surrounds the Central Marsh than IMC mapped there). According to IMC's FLUCFCS mapping, 278 acres of shrub marsh currently exist on the Altman Tract (of which 236 is DEP jurisdictional); Mr. Erwin believes there actually is approximately half that amount currently on the Tract, but still much more than IMC intends post- reclamation. According to IMC's FLUCFCS mapping, 58 acres of wet prairie (code 643) are on the Tract (almost all of which is DEP jurisdictional). Mr. Erwin thinks there actually are fewer acres of wet prairie on the Tract. Post-reclamation, IMC plans for there to be 92 acres of wet prairie (of which 80 will be DEP jurisdictional). As previously found, IMC mapped existing herbaceous, palmetto prairie (code 329), and other shrubs and brush (code 321) as mixed rangeland (code 330). Post-reclamation, IMC proposes to increase the mixed rangeland from 852 to 1,147 acres, while also eliminating 136 acres of herbaceous, almost all 98 acres of palmetto prairie, and almost 276 acres of other shrubs and brush mapped on the Tract. IMC does not propose any improved pasture (code 210) post-reclamation, and claims credit for eliminating 85 acres of improved pasture presently on the Tract. But actually there is no improved pasture on the Tract. Most of what IMC mapped as improved pasture actually is native palmetto prairie, herbaceous, and wet prairie cover. The 4.3 acres of streams and waterways on the Altman Tract have a Level II FLUCFCS code of 510. IMC's reclamation will not restore any streams or waterways during the reclamation process. IMC and DEP take the position that the streams actually are agricultural ditches of lower ecological value than the marshes IMC plans to recreate. However, many of the so- called agricultural ditches have relatively high ecological value because they are shallow and have existed without maintenance or improvement for decades. IMC has offered to provide a conservation easement in favor of the State of Florida consisting of not less than 230.8 acres. The conservation easement will consist of 169.7 acres of reclaimed Mitigation Marsh 561 ("Reclaimed Central Marsh") and the 61.1-acre preserved flow way area of Horse Creek. The Mullins Family's mineral interests underlie a portion of the preserved flow-way. Impacts During Mining/Reclamation As previously indicated, mining obviously will have a devastating impact on the natural environment of the Altman Tract. IMC proposes measures to attempt to minimize or reduce those impacts, both on the Tract and on adjacent lands. Ditch and Berm Recharge System IMC proposes to construct a perimeter ditch and berm system to preclude a direct release of potentially muddy water from mining areas to adjacent land, wetlands, or waters. This is recognized as a "best management practice" (BMP) by DEP and the United States Environmental Protection Agency. Water retained within the boundaries of the ditch and berm system is recycled and reused in the mining operation. IMC reuses approximately 95 percent of its water. The water in the ditch element of the ditch and berm system serves to maintain the ground water level on adjacent property owned by others and in waters and wetlands that are to be preserved from mining. Otherwise, groundwater will flow into dewatered mine cuts from adjacent lands, lowering the water table significantly in areas outside the mine cut. IMC proposes to construct two recharge ditch systems on the Altman Tract to protect the Central Marsh and the preserved area. Both ditch systems will originate in the vicinity of SR 37 and continue across the property to the eastern boundary. The northernmost ditch system will run north of the Central Marsh and the preserved area; another section of this ditch system will be constructed to the south and west of the preserved area. The southernmost ditch will run along the southern property boundary. Certain geological conditions at the Tract could inhibit the effectiveness of the ditch and berm system to maintain adjacent groundwater levels. But if such circumstances are encountered, an alternative recharge well system could be installed in those locations. The recharge system would be charged with clean water in order to be effective. Under a worst-case scenario, approximately two million gallons a day of water could be "lost" from the recharge ditches through seepage. But if seepage occurs, most of the water would reenter the mine recirculation system where it would be available for reuse and recycle. Generally, reasonable assurances were given that the ditch and berm systems can and will be constructed, maintained, and operated so as to be effective in protecting adjacent lands and the proposed preserved areas. However, it is questionable whether the ditch and berm system will be effective in the vicinity of the preserved forested bay swamp wetlands. In order to maximize mining in the area, IMC intends for the northernmost recharge ditch system to track closely the northern edge of those two mushroom-shaped features as they jut out north from the portion of the Horse Creek flow-way to be preserved. As a result, while the direct linear distance from the eastern boundary of the Tract to the western end of the westernmost of the two forested bay swamp wetlands proposed for preservation is approximately 2,600 to 3,000 feet, approximately 8,000 feet of recharge ditch must be constructed in that section of the recharge ditch. Mining the area between the two bay swamp wetlands will be like digging a big, deep trench with smaller, shallower recharge ditches on either side, making it harder to keep the recharge ditches filled with sufficient water to protect the bay swamp wetlands. In addition, while the bay swamp wetlands will be connected to the existing Central Marsh and receive some water from the AFW through the Central Marsh to the south, they will receive absolutely no runoff from the north. For these reasons, IMC did not give reasonable assurances that the two forested bay swamp wetlands will be preserved, as planned, during mining. They may be seriously adversely affected. If this happens, they will not be as useful as IMC plans as a refuge for mobile wildlife on the Tract during mining. In addition, as Dr. Clewell testified in IMC's case-in- chief, bay swamps are difficult and take a long time to restore. Mining and Reclamation Sequence IMC proposes a mining and reclamation sequence in part to minimize the duration of impacts of active mining. However, the benefits of this proposal are less than might be supposed at first blush because no additional recharge ditches are planned between mining blocks within the mine. Except where mining blocks are bordered by a perimeter or preserved area recharge ditch, groundwater will flow into dewatered mine cuts from adjacent mining blocks, lowering the water table significantly in areas outside the mine cut and up to a distance of approximately several hundred to a thousand feet. This will adversely impact the hydrology of wetlands within those adjoining areas--both wetlands not yet mined and wetlands that are supposed to be in the process of being revegetated as part of the reclamation sequence. Some existing wetlands will be impacted in this way one to two years before they are mined; some areas being revegetated during the reclamation sequence will be impacted in this way for three to four years. The requirement of "up-front mitigation" through the Replacement Central Marsh also would help reduce impacts during mining. However, as indicated, it is possible that this could extend the time during which the AFW would be required to provide off-site water to both the existing Central Marsh and the Replacement Central Marsh. Central Marsh Hydroperiods During Mining Reasonable assurances were not given that flows through the AFW from off-site will be sufficient to sustain required hydroperiods of both marshes for the length of time this is planned to be required, much less for a longer period of time. This issue was not addressed in IMC's case-in-chief. After the County's expert hydrologist, Mr. Davis, in the County's case-in-chief, Dr. Garlanger addressed it in rebuttal testimony by stating: "Based on my analysis, there is sufficient water -- with proper operation and maintenance of the recharge system, there is sufficient water for both the existing Central Marsh and the Replacement Central Marsh to have a very long hydroperiod." The only evidence of any analysis of wetland hydroperiods on the Altman Tract performed by Dr. Garlanger was designed to compare pre-mining and post-reclamation wetland hydroperiods. It did not address wetland hydroperiods during mining. In addition, this analysis was based on his suspect modification of the HELP model. See Findings 157-163, infra. For these reasons, Dr. Garlanger's "analysis" did not provide reasonable assurances that "there is sufficient water for both the existing Central Marsh and the Replacement Central Marsh to have a very long hydroperiod." The only other evidence of wetland hydroperiods on the Tract was an analysis submitted by Florida Engineering and Environmental Services (FEES). This analysis only modeled post- reclamation wetland hydroperiods. It also had several other deficiencies. It used a model with a groundwater component (Mine Hydrology Program) designed to simulate flow of groundwater into a mine cut, not into a wetlands. FEES also did not account for the effect of changed soil conditions on groundwater flow post-reclamation, and added an inappropriate "safety factor" by cutting the results in half. Errors with the surface water model component included the inappropriate use of a single event-based model for a multi-year simulation, the failure to account for changes in soil conditions, the use of the same curve number throughout the entire simulation, and numerous mathematical errors in the set-up and conceptualization of the surface water model. Errors in the spreadsheet combining the two components included the incorrect calculation of the stage-storage-discharge relationship, use of an ET value that is unrepresentative of actual conditions, and a major error in the calculation of wetland water levels. IMC did not rely on the FEES model in its case-in- chief. In fact, IMC's main hydrologic witness, Dr. Garlanger criticized the modeling performed by FEES. He testified that he would not have done the analysis in the same way, disagreed with some of FEES' assumptions, and would not have used the same model. Dr. Garlanger added to his rebuttal that "IMC has committed to augment or supplement the replacement marsh with water from the recirculation system or from surficial aquifer dewatering wells" or even "irrigate it, if they have to." Even if those extraordinary measures are taken by IMC with respect to the Replacement Central Marsh, they would not address the needs of the existing Central Marsh. Fish and Wildlife Mining clearly will have adverse impacts on all fish and wildlife on the Altman Tract except the bald eagle. Measures to protect the bald eagle nest site on the Tract should be adequate to avoid adverse impacts on that species. The proposed mining sequence and preserved area will be of some benefit to some mobile wildlife species, but it will not be enough to avoid adverse impacts. All fish on-site will be destroyed, less mobile species will not survive; some more mobile species probably will not survive. Loss of habitat on the Tract will adversely affect all of these species (again, except the bald eagle pair). The limited amount of preserved area will not be enough to avoid adverse impacts (even if the ditch and berm recharge system is effective in preserving the forested wetland bay swamps). The existing scrub jay habitat on the Altman Tract is not good quality. There are 30-40 acres of Type I (optimal) scrub jay habitat on the Tract, but the oaks are too high (more than three meters high. There are over 100 acres of Type II jay habitat on the Tract. The jay habitat on the Tract could be improved through active management. In 1998, there were two scrub jay family groups on the Tract. By 2002, only one family group remained, which was predictable due to habitat quality. Without active management, the scrub jay habitat at the Tract is not conducive to long-term survival and propagation. As part of a mine-wide Scrub-Jay Habitat Management Plan, IMC assessed several options for the scrub jay pair residing on the Altman Tract (including on-site habitat preservation) using sound scientific methodology, including population viability analysis models. It was decided that relocation to suitable habitat closer to other scrub jay families in accordance with the approved Scrub-Jay Habitat Management Plan has the highest probability of maintaining and recovering the scrub jay population in this area. As a result, IMC plans to capture and relocate the remaining scrub jay pair before mining on the Altman Tract. IMC will implement eastern indigo snake protection measures approved by the USFWS and FFWCC and incorporated into the Biological Opinion that applies to the Tract. These measures essentially consist of training land clearing crews in identification and appropriate response. If encountered during land clearing, work will cease and a trained biologist will be notified. The biologist will assess the work area and determine whether the snake should be captured and removed to a safe area. IMC regularly relocates gopher tortoises in advance of mining operations. According to IMC's ERP, surveys will be conducted prior to land clearing, and any gopher tortoises and their commensals (including the eastern indigo snake, the gopher frog, and the Florida mouse) will be relocated using appropriate permits and in coordination with the Florida Wildlife Conservation Commission (FWCC). According to IMC's ERP application, if active sandhill crane nests are found during mining, all land clearing in the vicinity of the nest and all mining in the vicinity of the nest will stop until the nesting cycle is complete. A 225-meter protection zone will be established per state guidelines around all active sandhill crane nests found during pre-clearing surveys. The FFWCC deems protection zones of this size to be a best management practice. Benefits of Reclamation As found, the wetlands and uplands on the Altman Tract are of very high quality--higher than claimed by IMC. IMC did not give reasonable assurances that the wetlands and uplands it would reclaim would maintain or improve the functions provided by the existing conditions. IMC's plan is to recreate a "natural landscape" on the Altman Tract. By this, IMC means a combination or mixture of natural wetland and upland habitat. Previous reclamation projects have not attempted to do this. The 1,410 acres of uplands IMC proposes to recreate will be dominated by 1,147 acres of "mixed rangeland" (FLUCFCS code 330). The 788 acres of wetlands IMC proposes to recreate will be dominated by 658 acres of freshwater marsh. Essentially, IMC plans to recreate a wetland system dominated by a large, relatively deep freshwater marsh. Freshwater marsh acreage will be more than double present conditions. There will be fewer shallow freshwater marshes. IMC plans to increase the amount of wet prairie, but there will be hardly any shrub marsh post-reclamation. Generally, there will be less "zonation" and less diversity. To increase on-site wetlands, uplands will be made correspondingly smaller. In addition, the quality of the uplands will decrease, as will the manner in which they interact with nearby wetlands. The diverse range of herbaceous, palmetto prairie, and other shrub and brush upland cover types presently found on the Tract will be largely replaced by 1,147 acres of mixed rangeland and 99 acres of unimproved pasture, out of a total of 1,410 acres of upland, post-reclamation. Eight acres of live oak and 33 acres of mixed hardwood-conifer will be gone. Pine flatwoods will more than double. As a result, the diversity and variety presently on the Tract will be missing under IMC's plan. The interactions among the diverse kinds of high- quality wetlands and uplands give the Altman Tract its valuable fish and wildlife functions. The evidence did not demonstrate that these functions will be restored through reclamation except perhaps the functions served by deep marshes. Wading bird populations nest in areas that provide a safe environment to raise their young. The existing Central Marsh does not provide optimal habitat for wading birds because the shrubby vegetation harbors predators. The proposed Replacement Central Marsh probably would provide better nesting and roosting habitat for wading birds such as egrets, herons, ibises, sand hill cranes, and wood storks than the existing Central Marsh. However, reasonable assurances were not given that the reclaimed Tract as a whole would provide wading bird habitat that is as good or better than the diverse mosaic of habitat types currently existing on the Tract. IMC justifies its plan to "simplify" the Altman Tract through reclamation by stating it will restore 1940 conditions that are better than those existing on the Tract. But the more persuasive evidence was that, with relatively minor differences, conditions today probably are quite similar to conditions in 1940. It was not proven that IMC's proposed reclamation project would return the Tract to conditions in 1940. One difference between current conditions and 1940 is the agricultural ditches. But as indicated, these ditches have not had serious adverse impacts on the Altman Tract. In addition, they have provided a kind of fish habitat on the site that would not be replaced by the Replacement Central Marsh. Any improvements from their elimination would have to be weighed against this habitat loss. Another difference is some transitioning to shrubbier conditions in parts of the Central Marsh. IMC attributes this change to fire suppression. It may also result at least in part from reduction of the up-gradient watershed as a result of mining on the Four Corners Mine. To the extent that there have been some changes due to fire suppression, the Draft Permit does not mandate fire management. Without fire management, it would be hard to sustain and maintain conditions that require periodic cool, surface fires, even if IMC were to recreate them. To the extent that there have been some changes due to drier conditions, IMC's strategy seems to be to essentially eliminate shrub marshes from the Tract and recreate more and deeper freshwater marshes. As indicated, assuming enough off- site flow for the strategy to succeed, this would alter the Tract and reduce the benefits of diversity and zonation. Evidence presented by IMC demonstrates a certain ability to reclaim the basic cover types proposed for the Altman Tract. IMC relied on 15 restoration sites as examples of successful restorations of the kinds proposed in IMC's reclamation plan. Mr. Erwin had the opportunity to spend five to six days inspecting this sites to test IMC's assertions. Based on his limited review, he was able to demonstrate that none of the restoration sites were of higher quality than comparable cover types on the Altman Tract, that most were lower quality, and that many had problems with nuisance and exotic species. Nine of IMC's examples were to demonstrate successfully recreated freshwater marshes and wet prairie. But Mr. Erwin pointed out that they primarily demonstrated an ability to recreate quality deep marshes. There were few shallow marshes. There were no wet prairies with native grasses in evidence; and there was no demonstrated ability to recreate them. Instead, the demonstration sites showed examples of wet pasture. The wet pasture usually was vegetated with some form of pasture grass, such as Bermuda and bahia grass, not with native grasses. In addition, an especially troublesome exotic and nuisance species called cogon grass dominated in many of the wet pastures and was invading some shallow marshes. There was no demonstrated ability to consistently control cogon grass for long in the shallow marshes and wet pasture areas. Three of the sites were supposed to demonstrate successfully recreated shrub marshes. While some were fairly successful, others were dominated by exotic and nuisance species, such as primrose willow. In some of the shallower shrub marshes, cogon grass also was invading from the upland transition area. It appeared that, at least without active management, these exotics and nuisance species tended to invade the recreated shrub marshes (especially the shallower ones) from the transition areas. There was no demonstrated ability to consistently control these species for long in the shallower recreated shrub marshes. Three of the sites were supposed to demonstrate successful recreated mixed wetland forest. One, called Morrow Swamp, was an early, experimental attempt by Mr. Erwin. It was released in 1983, and Mr. Erwin had not seen it since the early 1990's. On inspection in February 2003, he found that the hardwoods planted there no longer exist. All that remains essentially are large cypress trees in deep water. A second site, called "8.4 Acre," was becoming mixed forest in part, but much of the site was shrub marsh dominated by Carolina willow (a native plant, but one that does not fit the mixed forested wetland target), pasture (Bahia) grass, and cogon grass. Lack of continued management of this site probably has contributed to its failure to develop better. It was designed to have water levels and fluctuations controlled, but the designed flow way system is not being maintained. The third site, called "84(5)," also has some mixed forested wetland, but there also are large areas of shrub marsh and cogon grass. It is possible the site has not been more successful because an outfall has not been maintained, leading to higher water levels than planned, which can lead to invasion of undesired exotic species and perhaps retard natural re-seeding. Two sites were supposed to demonstrate successfully recreated mixed wetland hardwoods (similar to mixed forested but with fewer pine trees and more cypress). The first was "Dogleg Branch," which IMC did at its Lonesome Mine. Part of this site was a good example of successfully recreated mixed hardwoods wetland, which Dr. Clewell emphasized in his testimony. However, Mr. Erwin pointed out several other pertinent factors. First, "Dogleg Branch" has been in existence for 25 years. Second, the recreated stream where the most successful mixed hardwood wetland was located was noticeably more steeply banked than the preserved area downstream from the mine. Third, adjacent uplands (mostly planted pines) suffered from significant invasions of cogon grass. The second site was another part of "8.4 Acre," but the evidence was not persuasive that it contains a good example of wetland hardwoods mixed. As previously indicated, IMC developed WRAP scores for existing wetlands on the Altman Tract that substantially and improperly understated their quality. IMC also developed WRAP scores for 80 reclaimed wetlands. Generally, those scores were as high or higher than the scores IMC gave to the wetlands on the Altman Tract. Mr. Erwin was only able to inspect 15 of the 80 recreated wetlands for which IMC had WRAP scores--namely, those used by IMC as examples of the kinds of wetlands IMC would reclaim on the Altman Tract under the CRP. Mr. Erwin did not have time to develop his own WRAP scores for all of those recreated sites. But he saw enough to be convinced that the wetlands on the Altman Tract, overall, were higher quality than the 15 recreated wetlands. Mr. Erwin's testimony was persuasive in this regard, and there is no reason to believe that the other 65 recreated wetlands are as good or better than the Altman Tract wetlands. As indicated, the Altman Tract also is characterized by high-quality native uplands adjacent to its wetlands. The evidence was that, once the uplands are disturbed for mining, they will be susceptible to invasion by exotic and nuisance species, which would then be poised to invade wetlands during dry spells. As a result, control of exotic and nuisance species on the uplands is necessary for the long-term success of recreated wetlands; and IMC's "offer" to use native species for uplands recreation and to control nuisance and exotic species on uplands proactively through herbicides, removal, and fire and to limit them to ten percent of the upland cover is not superfluous. Rather, control of nuisance and exotic species on uplands is necessary for any hope of long-term success of recreated wetlands on the site. It is not clear from the evidence whether the "offer" to limit them to 10 percent will be enough; it also is not clear whether the 10 percent limit can be met. In rebuttal, IMC recalled Dr. Durbin to counter evidence in Charlotte County's case that the type and nature of the Altman Tract would not be restored through the proposed reclaimed wetlands. Dr. Durbin noted that, according to their field notes, Charlotte County consultants who evaluated the prevalence of plants and wildlife on IMC reclamation areas during discovery found that a very high number of plants species are also found in healthy natural systems. Similarly, wildlife species observed on the reclaimed areas matched well with those on undisturbed areas. But this evidence did not address Mr. Erwin's position that presence of plant and wildlife species does not necessarily indicate their prevalence and distribution. In addition, as to his comparison of wildlife species on reclaimed wetlands versus existing wetlands on the Altman Tract, Dr. Durbin did not correlate the size and type of wetlands he was comparing. IMC's reclamation plans are complicated by the mineral interests of the Mullins Family. Reclamation necessitates control over the site, as reflected in Draft Permit provisions to limit activity on the site during the reclamation process. IMC must restrict access to its property and manage it to ensure that there is no incidental encroachment or secondary activities that might compromise mitigation success. Reclaimed wetlands must be protected from mowing and grazing activities during the establishment phase of the reclamation for five years. But IMC cannot prevent the Mullins Family from accessing its portion of the Tract to explore and mine for minerals. Depending on how the Mullins Family might choose to exercise those rights, it could interfere with IMC's plans for reclamation on the southern part of the Tract. For that reason alone, reasonable assurances have not been given that reclamation will be successful. (The rights of the Mullins Family also reduce the value of the conservation easement offered by IMC over part of the portion of Horse Creek on the Tract proposed for preservation.) In summary, even assuming that the Mullins Family does not interfere with reclamation plans, IMC only has demonstrated the consistent ability to recreate deep marshes and some ability to recreate shrub marshes. There was no demonstration of IMC's ability to recreate shallower marshes or wet prairie. There also was no demonstration of an ability to recreate the kind of diversity through "zonation" and adjacent high-quality uplands found on the Altman Tract. Recreated wetlands can serve some of the wetland functions and values present on the Altman Tract today, but reasonable assurances were not given that they can serve all of those functions and values. As Mr. Erwin put it, given the hydroperiods planned for the reclamation wetlands, reclamation will not come close to replacing the type, nature, and functions presently on the Tract. To the extent that they can, the evidence was that long- term management would be required to maintain them and prevent them from becoming invaded and in time dominated by exotic and nuisance species. Other Mitigation IMC proposes certain measures for the protection of certain listed species. These include mine-wide Scrub-Jay Habitat Management Plan to improve and protect habitat for scrub jays in the vicinity of the Altman Tract and record a conservation easement on property designated by the USFWS. This plan was included in the modified CRP covering the Altman Tract. There was no evidence of any other habitat management plans for any other fish or wildlife species, listed or unlisted, wetland- dependent or not. IMC's ERP application includes reference to plans for protection of certain listed species by relocation to safe sites, but did not include any habitat management plans other than the those for the bald eagle pair on the Tract and for scrub jays. IMC is in the process of developing a habitat management plan for the gopher tortoises and their burrow commensals (such as the eastern indigo snake, the gopher frog, and the Florida mouse) for all property owned by IMC in Hillsborough, Manatee, Polk, and Hardee Counties. A draft of the plan has been submitted to the FWCC for review. The draft plan proposes to use a model to estimate how many gopher tortoise will have to be relocated due to mining activities and determine suitable habitat on land owned by IMC for relocating them. Monitoring The Draft Permit contains extensive monitoring requirements. Through the evidence it presented, primarily through the testimony of Dr. Anthony Janicki, Charlotte County criticized several aspects of the monitoring scheme in the Draft Permit. Dr. Janicki proposed what he viewed to be an ideal monitoring system. To some extent, Dr. Janicki's views reflect more of an academic than a permitting perspective, i.e., that more data is always better. In addition, since Dr. Janicki's monitoring goals are different from DEP's in the context of permitting, the standards, extent of monitoring, and indicators of environmental health he suggests are different from those identified in the Draft Permit. But these differences generally do not invalidate the monitoring system in the Draft Permit. One basic criticism made by Dr. Janicki is that the Draft Permit does not require a baseline water quality study defined both spatially and temporally. However, such a study would require at least a year of study and possibly three years or more, depending on rainfall, to obtain enough data under different flow conditions to have confidence in the baseline. While this might be necessary to determine whether an activity will degrade water quality, e.g., in an Outstanding Florida Water, it is not necessary to determine whether Class III water quality standards are being met. Another reason given by the County for requiring such a study was to monitor nutrient loading in anticipation of Horse Creek being named an "impaired water" with specific total maximum daily loads (TMDLs). But those requirements need not be anticipated in this proceeding. If TMDLs are imposed in the future, the necessary monitoring can be imposed at that time. One of Dr. Janicki's criticisms is valid. Specific Condition 15 states that mitigation wetlands can only be released when Specific Conditions 11 and 14 are met (T. 3133- 3134). However, Specific Condition 15.d. states that DEP "may release the mitigation wetlands based on a visual evaluation, notwithstanding that all the requirements of Specific Condition 11 have not been met." Since Specific Condition 11 incorporates Specific Condition 14, this provision may also allow mitigation wetlands to be released based on a visual evaluation, even if criteria in Specific Condition 14 are not met. Release by visual evaluation would not allow a reasonable person to determine whether the recreated wetlands have met all the success criteria. The more objective standards contained in Specific Conditions 11 and 14 should not be discarded in favor of subjective visual evaluations. ERP Conditions of Approval1 ERP conditions of approval are set forth in Chapter 373, Florida Statutes, and in Rule 62-330, which incorporates certain SWFWMD Rules in effect in 1995, including Rules 40D-4.301 and 40D–4.302, and the 1995 SWFWMD BOR. To demonstrate entitlement to the Draft Permit, IMC is required to provide reasonable assurance to DEP that it will meet these conditions of approval. As to Section 1 of the Altman Tract, different conditions apply for WRP review. These conditions are less stringent than ERP conditions of approval. IMC also is required to demonstrate compliance with Chapter 378, Florida Statutes, and the implementing provisions of Rule 62C-16 to receive approval of the Modified CRP. Rule 40D-1.6105 -- Legal Control Rule 40D-1.6105(1) states that all ERPs issued under these rules "are contingent upon continued ownership, lease, or other legal control of property rights in underlying, overlying or adjacent lands." Rule 40D-1.6105(3) states that "if the ownership, lease, or other legal control is divided, such permit shall immediately terminate unless the terms of the permit are modified by the Board or the permit is transferred pursuant to District rules." As previously found, the Mullins Family has fractional mineral rights to lands underlying most of the southern half of Altman Tract, including part of the portion of Horse Creek on the Tract proposed for preservation; and they have not consented to IMC's proposed mining and reclamation. The legal interest of the Mullins Family could interfere with IMC's plans for mining and reclamation on the southern part of the Tract. The rights of the Mullins Family also adversely affect part of the conservation easement offered by IMC over part of the portion of Horse Creek on the Tract proposed for preservation. Under these circumstances, IMC does not have the necessary legal control of property rights underlying the Altman Tract for purposes of Rule 40D-1.6105. IMC's application and other submittals to DEP during the review process did not disclose the interests of the Mullins Family in the Altman Tract although IMC was well aware of those interests. There is no indication that DEP was aware of the interests of the Mullins Family before deciding to give notice of its intent to issue the Draft Permit. There was no testimony or evidence from DEP concerning the significance of the mineral interests of the Mullins Family. BOR 3.2.1 -- Elimination or Reduction of Impacts BOR 3.2.1 requires that applicants explore practicable design modifications to reduce or eliminate adverse impacts to wetlands and other surface water functions. With respect to phosphate mining, there are no practicable design modifications that would completely eliminate impacts to wetlands and still allow the underlying resource to be mined. The most severe design modification, in the context of phosphate mining, essentially amounts to a "mine or no mine" decision. As a result of pre-application conferences, IMC proposed not to mine in a portion of the flow-way of Horse Creek and the adjacent forested wetland systems. IMC and DEP take the position that the economic value of the phosphate rock resource underlying the wetlands on the Altman Tract is a factor to be considered in deciding whether additional wetlands should be avoided. Actually, BOR 3.2.1.1 states that a proposed modification will not be considered "practicable" if it "is not economically viable" and "need not remove all economic value of the property in order to be considered not 'practicable'" but that "[c]onversely, a modification need not provide the highest and best use of the property to be 'practicable.'" There was no persuasive evidence that expanding the preserved area would not be "economically viable" or that it would "remove all economic value of the property." It is clear from the evidence that IMC had no reasonable expectation that it would be allowed to mine the areas it is proposing for preservation. The evidence also was persuasive that IMC also did not initially have reason to expect that it would be allowed to mine the Central Marsh. IMC and DEP cite other so-called design modifications to reduce the impacts of phosphate mining on the Altman Tract: the proposed mining and reclamation sequence to reduce the number of wetlands that would be disturbed and not reclaimed at any point in time; the requirements that the mitigation marsh at the Manson Jenkins Project in the headwaters of the West Fork of the Horse Creek, as well as the Replacement Central Marsh on the Altman Tract, must be successfully reclaimed as "up front mitigation" before mining is allowed to occur in the existing Central Marsh on the Altman Tract; and a requirement that IMC construct the AFW so that, until mining of the Central Marsh is allowed to occur, mining elsewhere on the Tract will not adversely impact flow to the Central Marsh. While clearly beneficial, the proposed mining and reclamation sequence is limited because no recharge ditches are planned for the individual mine blocks. As previously found, this will adversely affect wetlands in adjoining areas, resulting in adverse impacts to wetlands one to two years before they are mined. It also will have an impact on wetland reclamation. The requirements for "up-front mitigation" also are beneficial--i.e., it is better than not requiring "up-front mitigation." But if success of the required "up-front mitigation" is delayed, the AFW will have to supply water for both the existing Central Marsh and the proposed Replacement Central Marsh for a correspondingly extended length of time. Reasonable assurances were not given that enough water can be supplied to both marshes to sustain required hydroperiods without adverse impacts even for the length of time contemplated by the proposed mining and reclamation sequence, much less for an extended period of undetermined length. The "up-front mitigation" is required to meet the success criteria specified in Special Condition 11 of the Draft Permit. However, full function is not restored at this point in the reclamation process. Under Special Condition 12 of the Draft Permit, IMC is required to report data on physical and biological development to DEP for at least another five years. Under Special Condition 13, development of the Replacement Central Marsh is to be monitored and maintained "to promote survivorship and growth of desirable species." Under Special Condition 14, reclaimed wetlands are not to be "released" by DEP until constructed in accordance with permit requirements, more stringent "release criteria" (summarized in Table MR-2 of the Draft Permit) are met, and no intervention in the form of irrigation, de-watering, or replanting of desirable vegetation has occurred for a period of two consecutive years. The evidence was that this often takes longer than originally envisioned. The reclaimed wetlands identified by IMC as successful examples of the reclamation proposed at the Altman Tract do not provide full wetland function despite the fact that most of them have been existence for more than 15 years. The median date of release from DEP oversight for the 15 reclaimed wetlands was 10 years. IMC also cites the AFW as a design modification under BOR 3.2.1. But clearly no mining of the Central Marsh and watercourse between it and the box culverts under SR 37 would be allowed without the AFW, and the very need for the AFW begs whether IMC should be permitted to mine those areas. Based on the facts of this case, mining the existing Central Marsh and the watercourse between the Central Marsh and SR 37 should not be allowed or, if allowed, should be delayed until the mitigation headwater marsh on the Manson Jenkins Project is released by DEP. In addition, no mining should be allowed in the area between the two forested wetland bay swamps to ensure that the ditch and berm recharge ditch system areas will be effective in protecting those preserved areas. Rule 40D-4.301(1)(a) --Water Quantity Impacts Under Rule 40D-4.301(1)(a), an ERP applicant must provide reasonable assurance that its proposed activities will not cause adverse water quantity impacts to receiving waters and adjacent lands. Surface water flows are dependent on two sources: rainfall runoff from adjacent areas; and (2) groundwater that enters surface water streams, sometimes referred to as "base flow." On the Altman Tract, both rainfall runoff and baseflow basically flows into the watercourse between the box culverts under SR 37, the Central Marsh, and the rest of Horse Creek. Surface water flow off the Tract exits where Horse Creek exits the Tract. During mining and reclamation activities on the northern half of the Tract, the ditch and berm recharge system will capture rainfall runoff on these areas and eliminate the rainfall runoff contribution from those areas to stream flow at the point where Horse Creek exits the Altman Tract. When the southern half of the Tract is mined and reclaimed later in the sequence, the ditch and berm recharge system will capture rainfall runoff from the southern half of the Tract and eliminate the rainfall runoff contribution from those areas. The ditch and berm recharge system helps maintain baseflow from those areas, except where open mine cuts are too close. The combined effect of rainfall runoff and baseflow, however, will be a reduction in surface water flow off the Altman during mining. After mining and reclamation are complete, the ditch and berm systems will no longer be required. Rainfall runoff will flow across and through the reclaimed wetlands and then flow off-site. However, as previously found, more and deeper wetlands will be present after reclamation is completed than exist today. These wetlands tend to "use," through evapotranspiration (ET), more water than a comparably sized upland area. Thus, after reclamation is completed, there will be some reduction in the amount of water contributed from the property to the stream flow where Horse Creek exits the Altman Tract. IMC did not provide DEP with any hydrologic analysis of the extent of the water quantity impact of mining and reclamation on stream flow in Horse Creek downstream from the Altman Tract prior to DEP's decision to issue notice of intent to issue the Draft Permit. Subsequently, information of this nature was provided to DEP by Dr. Garlanger. Dr. Garlanger performed modeling to assess the potential significance of flow reductions anticipated during mining and reclamation at the Tract. The modeling results predicted that during mining and reclamation there will be some reduction in the flow rate in Horse Creek leaving the Tract during the 30 percent of the year when flow leaves the Tract. The predicted reduction, however, would be only a small percentage of the total flow at any point in time. Furthermore, the only effect of the predicted reduction in flow would be to reduce slightly the depth of the water in the channel. This predicted depth reduction probably would have no adverse ecological impact. Dr. Garlanger predicted that, after mining and reclamation are completed, flow in Horse Creek at the property line actually would increase very slightly on the average, but only because a portion of the runoff that now enters Horse Creek a bit further downstream from the Tract would report to the exit of Horse Creek from the Tract post-reclamation. Using the predictions from his modeling, Dr. Garlanger also assessed the worst-case impact of the predicted flow reductions from the Tract on several downstream locations. His analysis predicted that, during mining, there would be slight flow reductions occurring during otherwise high-flow conditions with the magnitude of such flow reduction decreasing as one moves downstream. Flow impacts at Charlotte Harbor were predicted to be miniscule and immeasurable. Even where measurable impacts were predicted at the closer downstream locations, the only anticipated impact was a slight reduction in water depth that is of no ecological consequence. During low-flow periods, no flow reduction impacts were predicted at any downstream locations. Flow impacts predicted after reclamation is complete at the Tract were even less than those predicted during mining. Whether IMC gave reasonable assurance as to the water quantity impact of mining and reclamation on the Altman Tract on receiving waters and adjacent lands depends completely on the validity of the modeling analysis performed by Dr. Garlanger. Nonetheless, and even though Dr. Garlanger's analysis was not prepared until after DEP's notice of intent, there was no evidence as to DEP's evaluation of the analysis since no DEP witness was called to give opinion testimony on this (or any other) issue. Dr. Garlanger's analysis essentially divided the Altman Tract into uplands and wetlands. For the uplands, he simulated runoff and baseflow into the wetlands using a modified version of the Environmental Protection Agency's (EPA's) Hydrologic Evaluation of Landfill Performance ("HELP") Model, which was run in a continuous manner with daily rainfall for 25 years. Dr. Garlanger then used those results as an input for another model for the wetlands to simulate change in wetland storage. He used a spreadsheet program to keep track of the changes on a daily based. Whenever water levels in the wetlands exceeded storage capacity, the excess water was treated as stream flow. This analysis was performed for five scenarios: current conditions; pre-mining at Four Corners (with a larger testing area); during mining at the time point of maximum capture or severance of acreage from the natural system; post- reclamation on the Altman Tract only; and post-reclamation on the entire reclaimed watershed. Dr. Garlanger's modified HELP model was not calibrated. Calibration is the process of verifying that the computer program matches real life conditions. Calibration is necessary to check the ability of the model to make reliable and accurate predictions. Since Dr. Garlanger's model was not calibrated, it only could be used for interpretative (i.e., comparative) purposes. The HELP Model was specifically designed to evaluate the movement of water through the top of a landfill into the leachate collection system. The HELP Model User's Manual specifically states "the model should not be expected to produce credible results from input unrepresentative of landfills." (T. 2004; Co. Ex. 55). Recognizing that the Altman Tract is not representative of a landfill, Dr. Garlanger modified the primary groundwater flow equation in the HELP model by changing several lines of computer code. Dr. Garlanger's modification of the HELP model has not been sanctioned by the authors of the HELP Model, nor has it gone through EPA's peer review and administrative approval process. The County's hydrologist, Mr. Phil Davis, questioned the validity of Dr. Garlanger's analysis on numerous grounds. Many of his questions were answered by Dr. Garlanger in rebuttal. But some important questions remain. One of Mr. Davis' criticisms was an error he thought Dr. Garlanger made in using Dupuit seepage equation. In rebuttal, Dr. Garlanger explained that there was no error because he was using the Uniform Infiltration and Drainage Equation, not the Dupuit equation. But Dr. Garlanger's report stated that he used yet another seepage equation, called Darcy's Law, which Dr. Garlanger called the "mother of all other seepage equations." Another of Mr. Davis' criticisms was that much better modeling tools were available to IMC, instead of the combination of spreadsheet models and other models, including the modified HELP model, used by Dr. Garlanger. The best of them, according to Mr. Davis, is one called the Integrated Hydrologic Model, which was developed by Florida Institute of Phosphate Research ("FIPR") specifically to model the pre-mining and post- reclamation hydrology of a phosphate mine project (T. 2111- 2115). In rebuttal, Dr. Garlanger acknowledged the existence of more complicated, numerical models that he could have used. He testified that he did not use any of them because he was "comfortable with the HELP model," having been "using it for a long time." He "only had to make a very minor modification," "basically one line of computer model code to make the HELP model calculate accurately the groundwater outflow." (T. 3401- 3402). He testified that he had been using his modified HELP model for three years. He claimed that his model was "peer- reviewed" in the sense that he was using it for IMC's pending Ona Mine application. As part of the "Team Permitting Process" for the Ona Mine application, he discussed his modeling approach with engineers and hydrologists from DEP and SWFWMD on the "hydrology work group" and stated: "Several suggestions were made. I believe I incorporated most of the suggestions into the model." (T. 3402-3403). There was no corroborating testimony or evidence from DEP or SWFWMD. Mr. Davis also questioned whether Dr. Garlanger's modification of the HELP model appropriately took into account changes in the surficial aquifer as a result of mining and reclamation. It appears that Dr. Garlanger's HELP simulations all used the same soil and aquifer parameters. The surficial aquifer presently consists of topsoil, overburden, and matrix. During active mining, the site will consist of some combination of open mine pits filled with recirculation water, some mined pits filled with sand tailings, and other mined pits filled with sand tailings and topsoil. In addition, IMC may throw overburden up against some or all mine cuts to help prevent seepage of groundwater flow out of the mine cuts. As a result, there will be vertical layers of overburden in parts or all of the site. Dr. Garlanger testified in rebuttal that he actually analyzed soil and aquifer parameters and determined that they would be the same before mining, during mining, and post- reclamation. Again, there was no opinion testimony from DEP. It is clear that proposed activities on the Altman Tract will reduce stream flow in Horse Creek to some extent. It also is clear that phosphate mining historically has contributed to some extent to decreased stream flow in the Peace River. As mining moves south, more runoff will be captured during mining since the unit rate of runoff is higher in the Lower Basin of the Peace River due to different soil conditions there. Mr. Davis testified that he believed the capture rate for the Altman Tract to be seven to nine inches a year--as much as 50 percent more than estimated by Dr. Garlanger. (T. 2192). Given the importance of surface water flow to the ecology of Horse Creek, the Peace River, and Charlotte Harbor, additional assurances should be required to better quantify the decrease in stream flow in Horse Creek and downstream that will result from mining the Altman Tract through use of a better model and further scrutiny of the soil and surficial aquifer parameters used for modeling. With regard to groundwater quantity, the evidence demonstrated that the ditch and berm recharge system generally will be effective in maintaining surficial aquifer water levels in adjacent lands and wetlands during mining and reclamation. Following reclamation, groundwater levels probably will return essentially to pre-mining elevations. Mr. Davis questioned whether lower post-reclamation topography in the southern end of the Altman Tract could cause a problem. A large reclaimed wetland only 100-200 feet from the southern property boundary would be five feet deeper than its pre-mining counterpart and could possibly cause drawdown impacts to wetlands in the adjoining Manatee River Basin in that location. Mr. Davis' concern was not directly rebutted by IMC, but it was not enough to overcome IMC's reasonable assurances as to water quantity impacts. As previously found, while the ditch and berm recharge systems generally would provide adequate ground water flow to the preserved wetlands on the Altman Tract during mining, reasonable assurances were not given that there will be no adverse impacts on the two forested bay swamps to be preserved; the ditch and berm system tracks the northern boundaries of those wetlands so closely that they may well be impacted through loss of surface water runoff and perhaps also groundwater from the north during mining. (4) Rule 40D-4.301(1)(b) -- Flooding An ERP applicant must demonstrate that its activities will not cause an increase in on-site or off-site flooding potential. To make this demonstration, a storm water analysis is performed. Rule 40D-4.301(1)(b) and BOR 4.2 require that predicted peak discharges from a mining site during a 25-year/24- hour storm event after mining and reclamation are completed may not be greater than that which would have occurred prior to mining or other development in the watershed. Under BOR 4.2.a.1, the allowable discharge is the peak rate at which runoff leaves the property by gravity under existing site conditions. Under BOR 4.2.b, unless otherwise specified, off-site discharges for the pre-mining and reclaimed conditions shall be computed using SWFWMD's 24-hour, 25-year rainfall maps and Soil Conservation Service's Type II Florida Modified 24-hour rainfall distribution with an antecedent moisture condition 11. Several peak flow analyses meeting the BOR requirements were discussed at the hearing in this case. All concluded that the post-reclamation peak discharges would be less than pre-mining peak levels. DEP relied on them in deciding to give notice of intent to issue the Draft Permit. Specifically, Mr. Steve Partney, DEP's reviewing engineer, testified that he relied primarily on an analysis prepared by Florida Engineering Design (FED), as the last analysis submitted in response to DEP's questions during the review process. All of these analyses utilized rainfall runoff models. Pickett and Associates (Pickett) and FED utilized the HEC-1 Model, and FEES utilized the AdICPR model. In its review of these analyses, DEP did not perform any independent modeling or calculations to verify the predicted flows. None of these models were calibrated; as a result, they only can be used for interpretative (i.e., comparative) purposes. All of these hydrologic analyses suffered from deficiencies, which rendered the model results unreliable. None of them accounted for water storage (retention or detention) on- site either pre-mining or post-reclamation; all essentially produced rainfall runoff hydrographs. FED's analysis improperly routed water out of wetlands located on off-site clay settling areas, and Pickett's misplaced a decimal point in defining the slope of the watershed. As a result, the discharges predicted by all these analyses were too high. The estimates for the five to 7.5 square mile Altman Tract drainage basins modeled ranged from 14,796 to 959 cubic feet per second (cfs), with corresponding peak unit flow rates ranging from 1,887 to 185 cfs per square mile. The peak flows were many times larger than the 25-year peak flood estimates at the gauging stations on Horse Creek near Arcadia, which has a 218 square mile drainage basin, and even on the Peace River at Arcadia, which has a 1,367 square mile drainage basin. They are also much greater than peak flows measured at other stream gauges in the Peace River with drainage areas much greater than the one simulated in this case. While none of these model predictions were reliable, the models still are useful for comparative purposes as an interpretive tool. All predicted lower peak flows after mining and reclamation than before. This information, together with the knowledge that there was going to be an increase in the amount of wetland acreage on the Tract, was a sufficient basis for a finding that there would not be increased flooding potential. In its case-in-chief, IMC presented the testimony of Dr. John Garlanger on an empirical study he performed primarily to assess the AFW to more accurately estimate the actual anticipated peak flows at the property. Having done his study for the AFW, it was relatively easy for him to use the same analysis to predict peak flows where Horse Creek exits the Tract. Employing a regional multiple regression analysis technique, Dr. Garlanger utilized actual historical flood flow information from nearby streams and estimated a pre-mining peak flow rate of 227 cfs exiting the property and a post-reclamation peak flow rate of 203 cfs at the same location. The County criticized Dr. Garlanger's regional multiple regression analysis as being a modification of a USGS- sanctioned regression equation developed for the State of Florida by W.C. Bridges of the United States Geological Survey in 1982. As indicated in a report submitted by Dr. Garlanger in March 2000, the Bridges equation would predict a post- reclamation peak flow for the Altman Tract that is a few percentages higher than the pre-mining peak flow. (798 cfs vs. 763 cfs, although other peak flows were indicated elsewhere in Dr. Garlanger's testimony). (T. 854, 856, 3492). But this is because use of the Bridges equation for both pre-mining and post-reclamation does not account for the proposed increase in storage on-site post-reclamation. Bridges' method recognized that the presence of lakes and wetlands in the watershed would affect flood flows. He took into account the actual area of lakes in a particular watershed and then assumed that wetlands would cover an additional three percent of the drainage area. However, in the region of Florida where the Altman Tract is located, there are few lakes but lots of wetlands in the watersheds involved. For that reason, Dr. Garlanger modified the Bridges equation and used the actual wetland percentage present in the watersheds for his analysis. Statistical testing gave Dr. Garlanger a very high confidence level in the results from use of his modified equation. The County's criticism of Dr. Garlanger's modification of the Bridges equation was based primarily on a misunderstanding that wetlands assumed to be "full" would provide no storage capability and would have no impact upon the flooding conditions on the Tract. Actually, "full" wetlands have no more retention capacity and begin to overflow. Because of the nature and configuration of wetlands, however, additional waters reporting to these systems do not immediately flow downstream. Instead, the water is detained in the wetland systems as it overflows laterally and only gradually discharges waters to downstream locations. This detention capacity of wetlands provides significant flood control function and was properly taken into account in Dr. Garlanger's analysis. The County also criticized Dr. Garlanger and the other IMC consultants for making no change in their models to account for changes in the composition of the surficial aquifer post-reclamation. However, Dr. Garlanger explained in rebuttal that soil storage capacity of the surficial aquifer affects the runoff curve numbers used as parameters in the various models. He testified that he reviewed USGS measurements for mined and unmined areas and found that the curve numbers were very similar for pre-mined and post-reclamation conditions. For that reason, he did not think using the same runoff curve numbers pre-mining and post-reclamation would introduce any significant error into the model results. The County also criticized Dr. Garlanger for using four gauging stations on Horse Creek for data to develop his regional regression equation. This may have introduced bias into his analysis, but the County made no attempt to quantify the error that may have been introduced. The County also criticized Dr. Garlanger's regional multiple regression analysis for not taking into account antecedent moisture conditions. However, Dr. Garlanger explained that, while he did not use the "Soil Conservation Service's type II Florida Modified 24-hour rainfall distribution with an antecedent moisture condition 11," as required by BOR 4.2.b, his equation accounted for antecedent moisture conditions by using actual peak flow data. Notwithstanding the County's criticisms, Dr. Garlanger's modification of the Bridges equation probably produced the most accurate peak flow study in evidence in this case. While Dr. Garlanger's study does not meet the technical requirements of BOR 4.2.b, it supplements the earlier analyses and provides additional assurance that post-reclamation peak discharges from the Altman Tract probably will not exceeding pre- mining peak discharges. Rule 40D-4.301(1)(c) -- Impacts to Surface Water Storage and Conveyance Capabilities IMC has agreed to modify the point of connection between the Replacement Central Marsh and the preservation area based on recommendations from Dr. Garlanger to minimize any disturbance of the preserved area. As indicated, Dr. Garlanger used his regional multiple regression analysis to assess the capacity of the AFW to convey anticipated peak flows during its operation and opined that the AFW, as designed, will carry these flows without difficulty. However, his analysis raised some concerns with regard to erosion control. For that reason, he recommended and IMC agreed to implement minor design revisions at both ends of the AFW: the 90-degree "elbow" turn at the inlet from the culverts will be protected from erosion by the placement of rip-rap; and the outlet to the Central Marsh will be modified to allow water to sheet flow at a slower rate when entering the Central Marsh. (IMC Ex. 96). With these changes, Dr. Garlanger predicted that anticipated flows through the vegetated AFW would not cause erosion in the structure or downstream. The County's criticisms of Dr. Garlanger's regional multiple regression analysis have been addressed. See Findings 174-176, supra. The County's witnesses did not perform any independent modeling of anticipated flows through the AFW, and Dr. Garlanger's analysis provided reasonable assurance that peak flows would neither cause erosion nor overtop the AFW. Of all the peak flow analyses, only Pickett's analysis predicted peak flows high enough to cause erosion and to overtop the AFW. But Pickett's extremely high peak flows were clearly erroneous. A hydrologic analysis was also performed to ensure that the Replacement Central Marsh would be adequate to carry anticipated peak flows. Taken together, the evidence proved that storage and conveyance capabilities will be more than adequate to handle peak discharges without increasing flooding either upstream or downstream of the Altman Tract both during mining and after reclamation. Rule 40D-4.301(1)(d) -- Fish & Wildlife Rule 40D-4.301(1)(d) requires that IMC provide reasonable assurances that its proposed activities "will not adversely impact the value of functions provided to fish and wildlife, and [l]isted species, including aquatic and wetland dependent species, by wetlands, other surface waters and other related resources of the District." BOR 3.2.2 requires IMC to provide reasonable assurances that its proposed activities "will not impact the values of wetlands, other surface waters and other water related resources of the District, so as to cause adverse impacts to: (a) the abundance and diversity of fish, wildlife and listed species; and (b) the habitat of fish, wildlife and listed species." It is clear from the evidence that the proposed mining of the Altman Tract will have adverse impacts on fish and wildlife resources on the Altman Tract. IMC characterizes these impacts as "short-term" and "localized" and notes that "temporary destruction of habitat and displacement of individuals is an unavoidable consequence of mining activities." IMC proposes to mitigate for these impacts through the implementation of "special measures" and by reclaiming the Tract to more and better wetland wildlife habitat than presently exists. However, as previously found, reasonable assurances have not been provided that the "special measures" and reclamation will offset the adverse impacts. See Findings 103-126, supra, and 220-222, infra. Rule 40D-4.301(1)(e) -- Water Quality Rule 40D-4.301(e) requires that IMC provide reasonable assurances that its proposed activities "will not adversely affect the quality of receiving waters such that the water quality standards . . . will be violated." According to Rule 62-312.080(1), this is essentially the same standard applicable to the WRP for Section 1 of the Altman Tract. Water within active mining areas will be retained within the mine's water recirculation system. Any necessary discharges will be made from a permitted outfall located on other property owned by IMC. Years of sampling and analysis demonstrate that water discharged from IMC's permitted outfalls is of high quality and reflects a very high rate of compliance with permit criteria. The waters on the Altman Tract and in Horse Creek where it exits the Tract are classified by DEP as Class III water bodies. IMC provided reasonable assurances that, after reclamation, surface water bodies on the Altman Tract should be able to achieve applicable Class III surface water quality criteria. The extensive water quality monitoring conducted by IMC on reclaimed areas demonstrates that water leaving the reclaimed areas and entering surface water bodies meets applicable water quality standards. Reclaimed wetland areas will not be connected to waters of the state until water quality criteria are met. Reasonable assurances were given that there will be no water quality impacts on any Class I waters, any Outstanding Florida Water (OFW) or aquatic preserve, or any Class II waters. The first downstream Class I water is 41 miles from the Tract; the Charlotte Harbor OFW is 51 miles away, and the nearest Class II water (approved for shellfish harvesting) is 55 miles away. Extensive groundwater quality monitoring in the vicinity of phosphate mining operations has demonstrated that such operations do not adversely impact the quality of groundwater in the surficial aquifer or in the deeper intermediate or Floridan aquifer systems. Charlotte County argued that adverse water quality impacts will occur downstream of the AFW (namely, discharge of turbid and sediment-laden water into the Central Marsh) if the flow velocity through the AFW becomes excessive or if the water overtops the AFW. But the evidence proved that such concerns are theoretical only, and unlikely to occur. The County also argues that destruction of stream habitat on the Altman Tract will result in a lack of habitat for benthic organisms and higher nutrient loadings and concentrations. However, the most significant stream habitat not proposed to be preserved is found in parts of the Central Marsh and in the watercourse between it and the box culverts under SR 37; most of the first-order streams on the Tract are the other agricultural ditches, which are less significant streams. For that reason, reasonable assurances were given that, if this kind of impact occurs, it would be limited, and applicable water quality standards probably would not be violated. Rule 40D-4.301(1)(f) -- Secondary Impacts Rule 40D-4.301(1)(g) requires IMC to provide reasonable assurances that its proposed activities will not cause adverse secondary impacts to water resources. There was no evidence of any secondary impacts. All impacts are primary impacts resulting from IMC's proposed activities on the Altman Tract. Rule 40D-4.301(1)(g) -- Minimum Flows and Levels Rule 40D-4.301(1)(g) requires IMC to provide reasonable assurances that its proposed activities will not adversely impact the maintenance of surface or groundwater levels or surface water flows "established in pursuant to" Section 373.042, Florida Statutes. No minimum flows or levels have been established by rule pursuant to Section 373.042, Florida Statutes, for any water body potentially impacted by the proposed mining or reclamation at the Altman Tract, including Horse Creek or the Peace River. See ManaSota-88, Inc., et al. v. IMC Phosphates Co., DOAH Consolidated Case Nos. 01-1080, etc. (DEP Final Order Nov. 22, 2002)("Manson Jenkins Final Order"), Ruling on Exception II ("Minimum flows and levels established pursuant to Section 373.042, Florida Statutes, must be adopted by rule, not on a case-by-case permit basis"); Findings of Fact 110, 199, 267 and 284. Until applicable minimum flows and levels are established by rule, IMC's proposed activities cannot impact the maintenance of any minimum flows and levels. The Peace River Regional Water Supply Authority's (Authority's) water plant is downstream of the confluence of Horse Creek and the Peace River. The Authority has a water use permit ("WUP") authorizing water withdrawals from this facility through 2016. Charlotte appears as a permittee on the WUP. Standard Condition 8 of the WUP requires surface water withdrawals to cease or be reduced if the Peace River's flow falls below minimum levels established in Florida Administrative Code Chapter 40D-8. Once SWFWMD formally establishes minimum flows and a recovery strategy for the Peace River, this permit condition will require the Authority to cease or reduce its withdrawals to achieve the minimum flow. The County wants any Draft Permit issued in this case to include a provision similar to the one in the Authority's WUP. But the Draft Permit is not a WUP, and there was no evidence as to any practicable way to impose a similar condition in the Draft Permit. Rule 40D-4.301(1)(h) -- Works of the District Rule 40D-6.051(5) states that no separate SWFWMD "Works of the District" permit under Rule 40D-6.041 will be required if SWFWMD issues an ERP for a project. The testimony of DEP witnesses was that DEP and SWFWMD have an informal agreement that no separate SWFWMD "Works of the District" permit under Rule 40D-6.041 will be required if DEP issues an ERP for a project. Rule 40D-4.301(1)(h) requires IMC to provide reasonable assurances that its proposed activities "will not cause adverse impacts to a work of the District established pursuant to Section 373.086, F.S." Under Rule 40D-6.031(2)(d), tributaries of the Peace River are "Works of the District." As previously found, Horse Creek is a tributary of the Peace River. Rule 40D-6.021(1) defines "tributaries" to mean "the contributing streams and other watercourses including brooks, rills, and rivulets, extending upstream to the point water usually begins to flow in a regular channel, with an alveus, or bed, and banks or sides, or to the point where the lines of ordinary high water marks converge, whichever extends the farthest upgradient." Section 373.019(11), Florida Statutes, also defines "other watercourses" to mean "any canal, ditch and other artificial watercourses in which water usually flows in a defined bed or channel. It is not essential that the flowing be uniform or uninterrupted." As previously found, Horse Creek passes completely through the Altman Tract. For that reason, the portions of Horse Creek passing through the Altman Tract are part of the Horse Creek tributary of the Peace River and are "Works of the District." It is clear that the "Works of the District" on the Altman Tract will be adversely affected by IMC's proposed activities. Mining will destroy and remove them upgradient of the proposed preserved area. IMC characterizes the destruction and removal of the Horse Creek tributary on the Altman Tract as a "temporary disturbance" and relies on its proposal to maintain flows through use of the AFW, as well as its position that these areas "will be reclaimed in a manner that will enhance their ecological function." Mitigation appears in Chapter 3 of the BOR, which is titled "Environmental." According to BOR 3.2, the criteria contained in Chapter 3 (including mitigation) apply to the "Environmental Conditions for Issuance" contained in BOR 3.1.1. Rule 40D-4.301(1)(h) is not identified in BOR 3.1.1 as one of the "Environmental Conditions for Issuance." If mitigation is available to offset adverse impacts to "Works of the District," reasonable assurances were not given that IMC's proposed reclamation will offset those impacts. As found, reclamation will not restore existing stream-like flow in parts of the Central Marsh and between it and the box culverts under SR 37. It was not proven that eliminating these features will "enhance" ecological function. Rule 40D-4.301(1)(i) -- Engineering and Scientific Capability Rule 40D-4.301(1)(i) requires IMC to provide reasonable assurances that its proposal "is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed." As reflected in previous findings, reasonable assurances were not provided as to certain aspects of IMC's proposal. Reasonable assurances were not provided that both the existing Central Marsh and proposed Replacement Central Marsh can be hydrated from off-site flow when this would be necessary. Reasonable assurances were not provided that the ditch and berm recharge system will be effective in preserving the two bay swamp forested wetlands. Reasonable assurances were not provided that stream flow to receiving waters will not decline. Reasonable assurances were not provided as to all aspects of the reclamation plan. In other respects, IMC's proposal is capable of being effectively performed and will function as proposed, based upon generally accepted engineering and scientific principles. Rule 40D-4.301(1)(j) -- Financial, Legal and Administrative Capability (BOR 3.3.3.7, Financial Responsibility) Rule 40D-4.301(1)(j) requires IMC to provide reasonable assurances that its proposed activities "will be conducted by an entity with financial, legal and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued." It is clear from the evidence that IMC owns the surface lands and the phosphate mineral interests to a depth of 150 feet. But, as previously found, IMC did not give reasonable assurance that it has the ability to prevent the Mullins Family from exercising its rights to explore and mine for minerals on the southern half of the Altman Tract. Without the ability to exclude the Mullins Family, IMC cannot give reasonable assurance that it can perform mining and reclamation of those lands, as proposed. In addition, the Mullins Family's mineral rights adversely impacts part of the conservation easement offered by IMC. BOR 3.3.7.6 allows an applicant to establish financial responsibility by several means, including "(d) Deposit of cash or cash equivalent into an escrow agreement." BOR 3.3.7.7 required IMC to submit an estimate of the total cost of wetlands mitigation addressing the relevant elements of cost as set forth in the BOR. The estimate is to be prepared assuming that a third-party contractor would do the mitigation work. The estimate is to be submitted along with a draft of the financial responsibility mechanism. IMC's most recent proposal estimates mitigation cost of $8,320 an acre for herbaceous wetlands, $8,722 an acre for shrub marshes, and $11,415 an acre for forested wetland system, for a total cost of $6.7 million. (T. 125; IMC Ex. 47). But the County presented evidence through its expert, Kevin Erwin, that the actual cost will be $25,660 an acre for herbaceous wetlands and $28,484 an acre for forested wetlands. (T. 2799- 2801; Co. Ex. 1612). IMC did not rebut the County's evidence. As a result, IMC did not provide reasonable assurances that its demonstration of financial responsibility is sufficient. In addition, IMC's draft escrow agreement is to be funded with cash on an annual basis. IMC takes the position that this is acceptable because BOR 3.3.7.6 requires establishment of financial responsibility "for each phase of the project." But calendar years of the proposed mining and reclamation sequence are not separate phases of the mining and reclamation project and should not be considered to be separate phases for purposes of BOR 3.7.7.6. IMC's ERP application states on page SP-01960 that it is not a multi-phase permit. The Draft Permit, in Table 1-A, refers to just two project phases--the first lasting six years, and the second spanning the rest of the project. According to BOR 2.1, a phased project is one where the applicant obtains a conceptual permit encompassing all project phases before obtaining a construction permit for the first phase; when no conceptual permit has been obtained, "applications for phases of a project may be considered only when the phases are totally independent of, or make sufficient provisions for, adjacent lands." Here, the years in IMC's proposed mining sequence are not totally independent. As previously found, wetlands in the active mining blocks will be impacted by mining of adjacent lands. IMC does not offer any financial responsibility for proposed reclamation of uplands. Mining and reclamation of uplands are not considered part of the "project" for purposes of Rule 40D-4.301(1)(j) and the financial responsibility BOR provisions. However, as found, successful reclamation of uplands is required in this case to give reasonable assurances as to successful reclamation of the wetlands. Rule 40D-4.302(1)(a) -- Public Interest Balancing Test Rule 40D-4.302(1)(a) requires that IMC provide reasonable assurances that its proposed activities will not be contrary to the public interest, upon consideration of the seven factors listed in the rule. (According to Florida Administrative Code Rule 62-312.080(2), this is essentially the same standard applicable to the WRP for Section 1 of the Altman Tract. See also Section 403.918(2), Florida Statutes (1991). Public health, safety, or welfare or the property of others As found, the project is located on IMC's private property and will not adversely affect public health, safety, or welfare, or the property of others in any way not addressed under one of the other factors. Conservation of Fish & Wildlife The proposed activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Reasonable assurances were not given that the proposed mining sequence will prevent adverse impacts; it will be of some benefit to some mobile wildlife species but not enough to avoid adverse impacts on conservation of them and their habitat. Measures proposed by IMC to help conserve fish and wildlife, including endangered or threatened species, and their habitats both on-site and off-site will be beneficial, but reasonable assurances have not been given that the overall effect of the proposed activities will not be adverse. IMC suggests that its voluntary establishment of a conservation easement over the preserved flow-way of Horse Creek and the Replacement Central Marsh will assure that the fish and wildlife values in these areas will be protected in perpetuity. However, that would not be true as to the portions of preserved flow-way where the Mullins Family has mineral rights. In addition, as of the date of the final hearing, the Board of Trustees of the Internal Improvement Trust Fund had not accepted the offered conservation easement. Without acceptance and management, the benefits of the offered conservation easement are not assured. IMC also suggests that its offered conservation easement and will act as a wildlife corridor and will connect to a larger regional network of habitat corridors conceived of and being encouraged by DEP known as the Integrated Habitat Network (IHN). However, it is not clear from the evidence how or if the IHN actually will tie into the Altman Tract. Navigation, flow or harmful erosion or shoaling As found, reasonable assurances have not been given that the proposed activities will not adversely affect the flow of water on the Altman Tract--specifically, off-site stream flow, on-site stream flow between the box culverts under SR 37 and the Central Marsh, and the flow required to hydrate both the existing Central Marsh and the proposed Replacement Central Marsh during the times this will be required. Otherwise, reasonable assurances have been given that the proposed activities will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. Horse Creek and the other water bodies on the Altman Tract are private and not navigable. With design modifications recommended by Dr. Garlanger and accepted by IMC, reasonable assurances have been given that the AFW will not cause erosion either within the AFW or in downstream waters. Based on Dr. Garlanger's recommendation, IMC has also agreed to revise the post- reclamation topography to match the elevation of the roadside ditch along SR 37 with bottom contour elevations of the Replacement Central Marsh. (T. Garlanger at 578; IMC Ex. 97, 98). With this revision, post-reclamation flows through this area will not cause erosion. Fishing, recreational values or marine productivity The proposed activities will not adversely affect the fishing or recreational values or marine productivity in the vicinity. The Altman Tract is privately owned and does not currently support public recreation or fishing activities. Being approximately 50 miles upstream from Charlotte Harbor, there is no marine productivity in the area. Following completion of reclamation mining activities, the Altman Tract will support similar fish and recreational values as currently exist on the Tract. Temporary or permanent nature Section 378.202(1), Florida Statutes, states that phosphate mining is a temporary use of the land. Under Chapter 378, Florida Statutes, and Rule 62C-16, mine operators are required to expeditiously reclaim mined land to a beneficial use. In the case of the Altman Tract, some combination of mining and reclamation activities are planned to take place for approximately 12 years, with reclamation activities being completely at the end of 17 years. However, reclamation could take longer than planned. When completed, the reclamation project becomes permanent in nature. Impact on significant historical and archeological resources. The Tract contains no significant historical or archeological sites. Current conditions and relative value of functions performed by affected areas. As previously found, the current condition and relative value of functions performed by the Altman Tract are very high. Reasonable assurances were not given that conditions and relative value of functions after reclamation will be as high. BOR 3.3 -- Mitigation Unavoidable adverse impacts to wetland functions caused by phosphate mining may be offset by mitigation as provided in BOR 3.3. BOR 3.3 cautions: "In certain cases, mitigation cannot offset impacts sufficiently to yield a [permittable] project. Such [cases] often include activities which . . . adversely impact habitat for listed species, or adversely impact those wetlands or other surface waters not likely to be successfully recreated." Under Section 373.414(6), Florida Statutes, phosphate mining wetland reclamation activities are deemed to be appropriate mitigation for purposes of the ERP process if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities. In this case, IMC provided reasonable assurances that water quality will be maintained but did not prove that proposed reclamation activities will maintain or improve the function of the biological systems present at the site prior to the commencement of mining activities. Rule 40D-4.302(2) -- Consideration of Past Violations DEP reviewed issues dealing with IMC's compliance with the ERP rules. DEP also took into consideration compliance issues with SWFWMD. All compliance issues related to both have been resolved. Rule 40D-4.302(1)(b) -- Cumulative Impacts Analysis Section 373.414(8)(a), Florida Statutes, requires DEP to consider the cumulative impacts of a proposed project on surface water and wetlands within the same drainage basin when evaluating an ERP application. Rule 40D-4.302(1)(b) requires an applicant for an ERP to provide reasonable assurance that the project will not cause unacceptable cumulative impacts on wetlands and other surface waters. Section 403.919, Florida Statutes (1991), also contained a somewhat different requirement for consideration of cumulative impacts, called "equitable distribution," which applies to WRPs. Section 373.414(8)(b), Florida Statutes, provides that, if an applicant proposes mitigation within the same drainage basin as the adverse impacts to be mitigated, and if the mitigation offsets these adverse impacts, then DEP shall consider the regulated activity to meet the cumulative impact requirements of Section 373.414(8)(a). See also Manson Jenkins Final Order, Ruling on Exception I; Finding of Fact No. 282. To the extent that IMC relies on reclamation for mitigation, the mitigation is confined to the Altman Tract. If this mitigation offsets adverse impacts, as IMC claims, there would be no need to consider cumulative impacts, since all mitigation would be within the same drainage basin as the adverse impacts to be mitigated. The only off-site mitigation proposed by IMC in this case would relate to parts of the "special measures" proposed for protection and conservation of wildlife. The County criticized IMC for not assessing the cumulative impacts on scrub jays since mitigation for the loss of scrub jays and scrub jay habitat on the Altman Tract is to occur outside the Peace River Basin. However, scrub jays are not wetland-dependent species and need not be included in a cumulative impacts analysis under the applicable statute and rule. On the other hand, if the proposed mitigation does not offset the adverse impacts of the proposed project, the project's impacts would not be permitted, and a cumulative impacts analysis would be superfluous. In this case, reasonable assurances were not given that proposed reclamation will offset impact. If the Draft Permit is not issued for that reason, cumulative impacts would not have to be addressed. While perhaps unnecessary, IMC presented an analysis prepared by Dr. Garlanger on the cumulative impacts of phosphate mining on flow conditions in the Horse Creek sub-basin and in the Peace River Basin. Dr. Garlanger used information gathered by another IMC consultant as to the acreage mined and reclaimed in the Peace River Basin from 1978 through 2002, and as to acreage anticipated to be mined and reclaimed between 2003 and 2027. Using information from his other modeling efforts, including his modified HELP model, Dr. Garlanger estimated a "maximum capture rate" for lands undergoing mining and an "ET loss rate" for reclaimed lands. In arriving at the "maximum capture rate," Dr. Garlanger assumed that all runoff would be captured by the ditch and berm recharge system surrounding the acreage being mined. This was a conservative assumption in that some water is discharged through outfalls permitted under the National Pollution Discharge Elimination System (NPDES). On the other hand, Dr. Garlanger assumed that there would be no reduction in baseflow if all ditch and berm recharge systems are maintained and operated correctly. While probably reasonable for purposes of his analysis, this may have been a liberal assumption in that there might be some reduction in baseflow contributions to stream flow during mining. Dr. Garlanger estimated a "maximum capture rate" of 0.56 cfs per square mile. In arriving at the "ET loss rate," Dr. Garlanger analyzed the post-reclamation land forms and their accepted average ET rates, together with estimates in ET changes calculated in connection with other mines. Using his professional judgment, he decided to use an "ET loss rate" of 0.05 cfs per square mile for reclaimed lands. Dr. Garlanger then applied his "maximum capture rate" and "ET loss rate" to the average number of acres mined and reclaimed during the period 1978 through 2002. This produced an estimated 2.71 cfs decrease in average flow in the Horse Creek sub-basin basin, both at SR 64 and at SR 72. He then applied his "maximum capture rate" and "ET loss rate" to the average number of acres anticipated to be mined during the period from 2003 through 2027. This resulted in estimates of decreases in average flow in the Horse Creek sub-basin of 11.70 cfs at SR 64 and 17.75 cfs at SR 72 (where cumulative flow impacts are higher because more mining will occur further south in the basin). Dr. Garlanger labeled the difference between the estimated decrease in average flow for 1978-2002, and the projected decrease in average flow for 2003-2037--i.e., 8.99 and 15.04 cfs, respectively--as the "cumulative impact" at those locations. Flow duration curves using 1978-2002 average flows as the baseline were used to demonstrate that so-called "cumulative impacts" would mean lower levels during periods of high flow (less than 25 percent of the time) but insignificant differences during periods of low flow (the rest of the time). Dr. Garlanger then performed similar analyses, using the same "maximum capture rate" and "ET loss rate," for the part of the Peace River Basin above Arcadia and for the entire Peace River Basin above Charlotte Harbor. The estimated average decrease in flow was different at these two locations during the "baseline" period: 60.13 cfs at Arcadia; and 62.84 cfs at Charlotte Harbor. The projected average decrease in flow also was different at the two locations in the later period, 2003- 2027. Because the average acreage expected to be mined in the Peace River Basin in 2003-2027 is much less than the average acreage expected to be reclaimed, the average decrease in stream flow at the two locations is expected to be less than in the baseline period: 33.15 cfs at Arcadia; and 18.12 cfs at Charlotte Harbor. Dr. Garlanger labeled the differences as cumulative impacts of increase in average flow. It seems clear that the number of acres mined but not yet reclaimed in the Peace River watershed in the future will not exceed the levels measured in the early 1990s. A comparison of land uses in the year 2000, and projected land uses in the year 2025, based upon publicly available documents, would indicate that the acreage being utilized for active phosphate mining areas will be reduced by approximately 40,000 acres from 2000 to 2025. IMC's other evidence would indicate that the area captured by phosphate mining in the Peace River Basin is expected to increase from approximately 28,000 acres in 2000, to approximately 41,000 acres in 2010, before dropping to approximately 35,000 acres through 2020, and declining further to approximately 30,000 acres in 2025. In the Horse Creek sub-basin, IMC expects the area captured by phosphate mining to rise steadily from approximately 8,000 acres in 2000, to approximately 23,000 acres in 2010, before dropping to approximately 20,000 acres in 2015, and remaining at that level until after 2020, when it will decline again to approximately 15,000 acres in 2025. While called a "cumulative impacts" analysis, Dr. Garlanger's analysis actually compares flow impacts from mining during 1978-2002 with expected impacts during 2003-2027. It does not examine the cumulative impact of phosphate mining and reclamation beginning in 1978. As such, the analysis shows the effects of ongoing reclamation and a decline in "capture area" within the Peace River Basin. It also shows the effects of an increase in "capture area" in the Horse Creek sub-basin. According to Dr. Garlanger's analysis, it would not appear that future phosphate mining and reclamation activities would have an adverse impact on water quantity at any point in the Peace River basin. Similarly, the relatively minor flow increases predicted would not be anticipated to have any adverse water quality implications and, in particular, would not measurably affect the freshwater/salt water interface in Charlotte Harbor. By using a single "maximum capture rate" for all mining since 1978, Dr. Garlanger's analysis did not account for higher unit rates of runoff in the Lower Peace River Basin due to different soil conditions than in the Upper Peace River Basin. As more mining moves south, the actual "maximum capture rate" will increase, and more runoff will be lost due to capture per acre mined than Dr. Garlanger's analysis predicts. According to Mr. Davis the actual capture rate for future mining may well 50 percent greater, or even twice, the average capture rate assumed by Dr. Garlanger for purposes of his analysis. (T. 2149, 2192). As indicated, Dr. Garlanger's cumulative impacts analysis only addressed flow. It did not address the cumulative impacts from the loss of other wetland functions, fish and wildlife habitat functions. In addition, cumulative impacts from the loss of first-order streams might be significant. The evidence was that approximately 20 percent of the first-order streams in the Horse Creek sub-basin are in areas where phosphate mining activities were said to be expected from 2003-2027. Urban areas will increase by approximately 220,000 acres between 2000 and 2025. Dr. Garlanger also considered the potential impact of these and other types of development on stream flows. Rigorous analysis of this issue was not undertaken because residential, commercial and agricultural developments generally have a tendency to increase stream flow (although some agricultural developments might decrease stream flow somewhat). Rule 62C-16.0051 – Reclamation Requirements3 Soil Zone The proposed reclamation in the Modified CRP complies with the soil zone requirement in Rule 62C-16.0051(3) requiring good quality topsoil or other appropriate growing medium. Restoration Rule 62C-16.0051(4) requires that wetlands disturbed by mining operations be restored acre-for-acre, type-for-type. Rule 62C-16.0021(15) defines "restoration" to mean: "recontouring and revegetation of lands in a manner, consistent with the criteria and standards established pursuant to this chapter, which will return the type, nature, and function of the ecosystem to the condition in existence immediately prior to mining operations." Acre-for-Acre, Type-for-Type For purposes of Rule 62C-16.16.0051(4), Florida Administrative Code, DEP relies upon Level II of the FLUCFCS system to determine whether wetlands are being replaced "acre- for-acre, type-for-type." See Manson Jenkins Final Order, Ruling on Exception V. It appears that, in Manson Jenkins, FLUCFCS Level II distinguished between herbaceous wetlands and forested wetlands to determine compliance with the type-for-type requirement of Rule 62C-16. In this case, IMC proposes to replace 478 acres of Altman Tract herbaceous marsh with 865 acres of herbaceous marsh after reclamation on the Tract. As previously found, there may actually be a little more herbaceous marsh on the Tract than IMC mapped (i.e., some of the erroneously mapped improved pasture). But it is clear that IMC is proposing more herbaceous marsh for reclamation than now exists. It also is clear that, after addition of the Altman Tract, the Modified CRP will increase herbaceous marsh acreage on the total 46,533 acres covered by the Modified CRP. As for forested wetland, IMC proposes to reclaim with 70.5 Altman Tract acres versus 38 acres now on the Tract. It also is clear that, after addition of the Altman Tract, the Modified CRP will increase forested wetland acreage on the total 46,533 acres covered by the Modified CRP. Under FLUCFCS Level II, each type of forested wetlands has its own code: wetland hardwood forests are code 610; wetland coniferous forests are code 620; and wetland mixed forests are code 630. Under code 620 (wetland coniferous forest), IMC does not plan to replace the half acre it mapped on the Altman Tract in its reclamation plans for the Altman Tract. However, as to the total 46,533 acres covered by the Modified CRP, 213 acres of wetland coniferous will be replaced by 394 acres post-reclamation. The 4.3 acres on the Altman Tract mapped by IMC as FLUCFCS 510 (Streams and Waterways) are not being replaced "acre- for-acre, type-for-type." Citing BOR 3.3.1.1, IMC and DEP take the position that replacement is not required because these are agricultural ditches which are less desirable wetland types than the herbaceous marshes that are to replace them. Actually, the so-called agricultural ditches have relatively high ecological value because they are shallow and have existed without maintenance or improvement for decades. Some provide beneficial functions of first-order streams. Some provide fish habitat at times. In addition, BOR 3.3.1.1 does not apply to Rule 62C- 16.16.0051(4). IMC's and DEP's treatment of FLUCFCS Code 510 in the Modified CRP is confusing. In the review process, DEP asked for an explanation as to why IMC mapped 224 acres as code 510 but only proposed to reclaim 9 of them. In a response, IMC stated that there were 209 acres of FLUCFCS code 510, that "193 acres are manmade features which should not be counted on an acre for acre, type for type, due to these being agricultural ditches for drainage of crop/pastureland. The remaining 16 acres are acre for acre, type for type and mitigated for in the post reclamation plan as FLUCFCS 510 acreage." The Modified CRP indicates that, of the total 46,533 acres covered by it, 200 acres are FLUCFCS code 510 and that there will be 11 acres of FLUCFCS code 510 post-reclamation. The Modified CRP also includes a table of the 5,077 acres covered by it that are not yet disturbed. The preface to the table states: "However, some enhancement work to be conducted in the non disturbed land will result in changes in FLUCFCS acreage from pre-mining to post reclamation." The table indicates that 10 acres of these "non-disturbed lands" are FLUCFCS code 510 pre-mining and that there will be 10 acres of FLUCFCS code 510 post-reclamation. Due to the confusion, reasonable assurances were not given that "streams and waterways" will be replaced "acre-for-acre, type-for-type." The Modified CRP also makes reference to FLUCFCS code 560 ("slough waters"). No sloughs were mapped on the Altman Tract. The slough between the box culverts under SR 37 and the Central Marsh were mapped as freshwater marsh (FLUCFCS code 641). But the Modified CRP indicates that, of the total 46,533 acres covered by it, there were 12 acres of slough waters pre-mining and that none of them are to be replaced post-reclamation. The Modified CRP's table of "non-disturbed lands" does not include any FLUCFCS 560 slough waters. Notwithstanding the confusion, it seems clear that the slough-like area between the box culverts under SR 37 and the Central Marsh should not be eliminated. To do so would exacerbate the elimination of slough waters under the Modified CRP. (b) Nature and Function As indicated, the other part of the definition of "restoration" in Rule 62C-16.0021(15) speaks to returning "the nature, and function of the ecosystem to the condition in existence immediately prior to mining operations." See also Section 378.207(1), Florida Statutes (requiring "return of the natural function of wetlands or a particular habitat or condition to that in existence prior to mining"; and Section 378.203(10), Florida Statutes (requiring restoration to "maintain or improve the water quality and function of the biological systems present at the site prior to mining"). In this case, IMC did not prove that its reclamation will meet these restoration requirements. Design The reclaimed wetlands at the Tract will comply with the general design requirements of wetlands set forth in Rule 16C-16.0051(5). Among other things, the proposed reclaimed wetlands have been designed to provide aquatic wetlands and wildlife habitat values, maintain downstream water quality by preventing erosion and providing nutrient uptake; and reclaimed water bodies are to incorporate a variety of emergent habitats, a balance of deep and shallow water, and fluctuating water levels. (T. Durbin at 1471, 1542-44). However, as previously found, post-reclamation water levels will be generally deeper, hydroperiods will be longer, and zonation will be reduced, such that the nature and functions of existing wetlands will not be maintained. Water Quality As required by Rule 16C-16.0051(6), applicable water quality standards will be met for waters leaving reclaimed wetlands on the Tract and wetland water quality on the Tract will support fish and other wildlife. Flooding and Drainage Patterns As required by Rule 16C-16.0051(7), all necessary steps have been taken to eliminate the risk of flooding on lands not owned by the applicant. In addition, general drainage patterns would be restored. Watershed boundaries will not be crossed, and post-reclamation topography would allow interconnectivity between at least some wetlands created on the Tract during at least some periods of rain. Revegetation Requirements The Draft Permit requires that reclaimed wetlands and uplands on the Tract comply with the revegetation provisions (including minimum cover requirements) as required by Rule 16C- 16.0051(9). (IMC Ex. 12, Sp. Cond. 14C). Mitigation Measures As required by Rule 16C-16.0051(10), the modified CRP identifies measures designed to offset fish and wildlife values lost as a result of mining operations. Special programs to restore, and/or reclaim particular habitats, especially for endangered and threatened species, have been identified. However, as previously found, reasonable assurances were not given that these measures will succeed in offsetting fish and wildlife values lost as a result of mining operation. Reclamation Schedules Reclamation is proposed to proceed in a fashion that will comply with the schedules contained in Rule 16C-16.0051(11). (IMC Ex. 12, Sp. Cond. 11).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that DEP enter a final order denying IMC's applications to mine and reclaim the Altman Tract. DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2003.
Findings Of Fact Respondent Pierson is the owner of a parcel of land located at 7 Heilwood Street, Clearwater Beach, Florida. This parcel consists of the North 1/2 of Lot 2 and all of Lot 3 in Block 6, Revised Map of Clearwater Beach, according to the plat thereof as recorded in Plat Book 11, page 5, of the Public Records of Pinellas County, Florida. The westwardly portion of the parcel is beach front property on a coastal barrier island. When the subdivision known as Clearwater Beach Subdivision was platted, fifteen lots were placed in Block 6. The three beachfront lots were smaller in area than the other twelve lots which were uniform in size and shape. However, when Lot 2 was divided and the northern half went to Lot 3 and the southern half to Lot 1, fourteen similar parcels were created in Block 6. Pierson purchased the parcel in question as unimproved property in Clearwater Beach Subdivision in 1962. This was nine years prior to the creation of Coastal Construction Control Lines by the Florida Legislature. The establishment of the Coastal Construction Control Line for Clearwater Beach in 1977, caused building setbacks previously established by the City of Clearwater for this unimproved parcel to become even further restricted. The Coastal Construction Control Line deleted the seaward 5/8ths of the Pierson property on which a building could have been erected previously on Clearwater Beach. Few parcels on this island were impacted as severely as Respondent Pierson's by the creation of the Coastal Construction Control Line because most of these parcels already contained permanent improvements. This parcel remained vacant until Respondent Pierson erected a duplex in 1986. This improvement was constructed according to the Land Development Code in effect at the time with the following exceptions: A variance of zero setback from the Coastal Construction Control Line and a 6 foot height variance to permit construction of a building 31 feet in height were granted by the Board. At the time the variances were granted, Respondent had the option to build either a duplex or a triplex at the site. Respondent seeks to expand this structure and to convert it into a triplex. In order to complete the planned expansion, a variance of 18 feet was requested from the Board to allow construction 7 feet from the Heilwood Street right-of-way. Currently, the Code requires a 25 feet setback from a street right-of-way. In addition, a variance of two feet from the eastward property boundary was requested to allow construction up to 6 feet from this side property line. Code provisions require an 8 feet setback. The existing structure is 6 feet from this side property line. The proposed addition to the current structure would continue with that eastern setback of 6 feet to the north, with an additional 25 feet of structure extending towards Heilwood Street. The expansion of the building to the west would terminate at the Coastal Construction Control Line. The property is zoned RM-20 with a land use plan designation as high density residential developed. The parcel is 95.12 feet in length and 87 feet in width, an area of 8,242.38 square feet. Ordinarily, a parcel with these dimensions is of sufficient size to build the structure proposed by Respondent Pierson without violating the street right-of-way setback and the side property line setback mandated by the Code. In this case, setback variances are required to complete the triplex because of the Coastal Construction Control Line's location on the parcel. In his application for variance, together with evidence presented, Respondent Pierson contends that the variance request arises from a condition unique to the property. The "unique" condition being that he did not build what he now wants to build on the property before the land use restrictions currently in place limited development of the parcel to such an extent. All other lot owners in the locale chose to develop their lots earlier than Respondent did, under less restrictive conditions. As a result, Respondent Pierson's duplex is setback further from Heilwood Street than the other buildings. Deciding when and what to build as a real property improvement is part of real estate ownership. Now that Respondent Pierson wants to change his previous development decision to reflect his current intended property use, he wants the same setback benefits as those acquired by other property owners on Heilwood Street who developed their parcels during past time periods with less restrictive setbacks. The Coastal Construction Control Line and the building setbacks have been placed on the property because of legitimate state and local concerns. A driveway was placed by Respondent Pierson in front of the duplex as it faces the water at the end of a dead-end street. The location of this driveway and the existing setback of the duplex from the road beyond all of the other property setbacks on this street, make this portion of Respondent's property a convenient area for traveling cars to turn around or to park while using the beach. Respondent Pierson contends that the variances he has requested will discourage the use of his land as a turnaround area, because it would be clear to those attempting to use his driveway that they were trespassing. His primary interest is to maintain his private interests in the property which should go beyond those currently enjoyed by the public. It is a desire for these rights that control his request for the variances as opposed to a desire to secure a greater financial return. The variances granted by the Board will not be materially detrimental or injurious to the Vasilaros property. The variances, however, could impair the present value of the Petitioner's property because the expansion of the Pierson duplex into a triplex would block a large amount of the Gulf view the Vasilaros building was designed to acquire. Petitioners' lot is in the same subdivision as the parcel owned by Respondent Pierson. Even before the Vasilaros lot was improved, the landowners knew or should have known that another parcel separated this lot from the beach. Respondent Pierson is under no statutory or contractual obligation to restrict his land use to allow Petitioners a view. The variances granted would result in a nonconforming building. All of the other structures in the immediate vicinity are nonconforming because these structures were built before current zoning regulations were adopted. Respondent Pierson seeks to blend with the neighborhood on the street and to have the same nonconforming advantages. Respondent Pierson could convert the current structure into a triplex. The apartments would be much smaller than the ones contemplated in the proposed plan. He seeks to create the third apartment for his own retirement home. On August 22, 1991, the Board granted a variance of 15 feet to permit construction of a triplex 10 feet from a street right-of-way and a second variance of 2 feet to allow construction up to 6 feet from the side property line to the south because the Board found that the applicant has substantially met all the standards for approval, as listed in Section 137.012(d) of the Land Development Code. More specifically, the Board found: a) The variances arise from a condition which is unique to the property and not caused by the applicant; b) The Coastal Construction Control Line restricts the use of two- thirds of the property, allowing only 19 percent use, c) The particular physical surroundings, shape, or topographical conditions involved and the strict application of the provisions of this Development Code would result in unnecessary hardship upon the applicant; and d) The variances granted are the minimum necessary to overcome the hardship created by the minimal use of the property subject to the requisite building permit being obtained within six months from the date of this public hearing.
Recommendation Accordingly, it is ORDERED that the variances granted by the Board be set aside and the application for the variances submitted be denied. DONE and ENTERED this 11th day of February, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: JOHN T BLAKELY ESQ PO BOX 1368 CLEARWATER FL 34617 GEORGE W GREER ESQ 600 CLEVELAND ST - STE 685 CLEARWATER FL 34616 MILES LANCE ESQ PO BOX 4748 CLEARWATER FL 34618 CINDIE GOUDEAU/CITY CLERK CITY OF CLEARWATER PO BOX 4748 CLEARWATER FL 34618 MICHAEL WRIGHT/CITY MANAGER CITY OF CLEARWATER 112 S OSCEOLA AVE CLEARWATER FL 34618 VERONICA E. DONNELLY 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 11th day of February, 1992.
The Issue The issues in these cases are whether the Respondent, Roy Palmer, is entitled to a Noticed General Environmental Resource Permit, under Florida Administrative Code Chapter 62-341, and a Consent of Use under Florida Administrative Code Chapter 18-21.
Findings Of Fact Procedural History On or about February 13, 1995, the Respondent, Roy Palmer (Palmer), applied for a wetland resource permit to construct a 395-foot boat dock for use at his single-family residence at property he owned on Sarasota Bay, an Outstanding Florida Water. As proposed, this dock was to originate from the northern part of Palmer's property and have a terminal platform with two boat moorings and two boat lifts. On September 1, 1995, the Department of Environmental Protection (the Department or DEP) gave notice of intent to issue a permit for a shorter (370-foot) dock originating from the southern part of the Palmer property. The Petitioners filed a petition for administrative hearing challenging the intended action. DEP referred the petition to the Division of Administrative Hearings (DOAH), where it was assigned DOAH Case No. 95-5311. On or about December 11, 1995, Palmer applied for a noticed general environmental resource permit (ERP) permit for his dock under new DEP rules went into effect on October 3, 1995. This proposal was for the 370-foot dock originating from the southern part of the Palmer property. On or about January 10, 1996, DEP acknowledged receipt of the noticed general ERP (No. 582819483) and informed Palmer that it appeared to meet the requirements of the new rule. DEP also gave notice of intent to grant Palmer's application for consent of use of sovereign submerged lands necessary to construct the dock. (The record is not clear when the application for consent of use was filed.) The Petitioners filed a petition for administrative hearing challenging agency action regarding both the noticed general ERP and the consent of use. DEP also referred this petition to DOAH, where it was assigned DOAH Case No. 96-0736. Palmer withdrew the original permit application and moved to dismiss DOAH Case No. 95-5311. In July, 1996, Palmer applied for a noticed general ERP to build a still shorter (232-foot) dock originating from the southern part of the Palmer property (Permit No. 292583). Apparently, no notice of the application was published or required to be published. It is not clear whether the Petitioners "filed a written request for notification of any pending applications affecting the particular area in which the proposed activity is to occur." Palmer's second noticed general ERP (No. 292583) was amended on or about August 19, 1996, to eliminate one boat mooring and one boat lift. DEP took no action on Palmer's second application for a noticed general ERP No. 292583. On September 23, 1996, Palmer filed a Motion to Dismiss the Petition for Administrative Proceeding in DOAH Case No. 96-0736 because he had withdrawn the previous application for a noticed general ERP for a 370-foot dock (No. 582819483) and was proceeding only on the second noticed general ERP (No. 292583) for the 232foot dock. Palmer's intent was to dismiss only the portion of his prior application regarding the noticed general permit, but not the consent of use. On October 28, 1996, the Petitioners filed a petition for administrative hearing challenging noticed general ERP No. 292583 for the 232-foot dock. This petition alleged that the Petitioners filed a written objection to noticed general ERP No. on September 16, 1996, which requested a written response, and that no response of any kind was received until the Petitioners inquired and were told that DEP did not intend to respond to either the noticed general ERP (No. 292583) or the Petitioners' objection. Proposed Dock at Issue The proposal at issue is for a 227-foot access pier and 20 foot by 5 foot terminal platform with only one boat mooring and one boat lift. The length, location, and design of Palmer's proposed dock was changed in an attempt to satisfy the Department of Environmental Protection (DEP or the Department) and Palmer's neighbors. Palmer's task in this regard was difficult in part because a longer dock with a terminus in deeper water could have less impact on seagrasses (the major environmental concern) but would have a greater impact on the neighbors' views of Sarasota Bay (the major infringement of riparian rights concern.) In the final version, Palmer tried to balance these conflicting concerns. As proposed, neither the terminal platform, boat lift, nor mooring location occurs over submerged grassbeds, coral communities or wetlands. Starting at the mean high water line, the first 75 feet of the access pier for the proposed dock will traverse essentially no sea grasses. In the next 75 feet to 150 feet of the access pier, there will be approximately 80% vegetative cover consisting primarily of the seagrass halodule wrightii. Between 150 feet and 200 feet, there will be approximately 20% vegetative cover consisting of the seagrasses halodule wrightii and thalassia testudinum. Between 200 feet and 232 feet, seagrasses consisted primarily of thalassia testudinum, except that the terminal platform is located in an area of essentially bare sand. Starting at 80 feet from the mean high water line, the access pier for the proposed dock will ramp up to 5 feet above mean high water for the next 20 linear feet and continue at that elevation for the next 112 feet to reduce shading of the seagrasses. Then it will descend stairs for the next 5 linear feet, until it is 3.5 feet above mean high water, and will continue at that elevation for 10 more feet to where it joins the 20 foot by 5 foot terminal platform. In this way, wherever it traverses seagrasses, the access walkway portion of the pier will be elevated 5 feet above mean high water. The access walkway will be only 4 feet wide and will have half-inch wide gaps between its deck boards to allow sunlight through and further reduce shading of the seagrasses. The access walkway also will have handrails that are maintained in such a manner as to prevent use of the access walkways for boat mooring or access. As proposed, the terminal platform and boat lift occurs in a location with minimum depth of 2.2 feet below the mean low water level. There is some water 1.7 feet deep in the vicinity of the terminal platform, but the structure can be used without traversing the shallow water. The structure is designed so that boat mooring and navigational access will be in water at least 2 feet deep. Including access pier and terminal platform, the total area of Palmer's proposed dock over sovereign, submerged land would be 1,008 square feet. There will be no wet bars or living quarters over wetlands or surface waters or on the pier, and there will be no structures enclosed by walls or doors. There will be no fish cleaning facilities, boat repair facilities or equipment, or fueling facilities on the proposed dock. No overboard discharges of trash, human, or animal waste, or fuel will occur from the dock. The only dredging or filling associated with construction of Palmer's proposed dock will be the minimum dredge and fill required for installation of the actual pilings for the pier, terminal platform, and boat lift. Altogether, less than 30 square feet of bay bottom will be disturbed during construction and displaced to accommodate the pilings. Palmer's noticed general ERP is subject to the general conditions set out in Florida Administrative Code Rule 62- 341.427. Among those conditions is the requirement that Palmer implement best management practices for erosion, turbidity, and other pollution control to prevent violation of state water quality standards. The pilings will be jetted, not driven, into place to minimize disturbance of the bay bottom and temporary increases in turbidity. Turbidity barriers will be installed and maintained in a functional condition at each piling until construction is completed and soils are stabilized and vegetation has been established. Used properly, turbidity barriers have proved effective in containing temporary turbidity from dock construction. Based on the expert testimony, it is found that the construction of Palmer's proposed dock will not significantly impact seagrasses. The Petitioners presented expert testimony on seagrasses, but their expert testified only generally based on studies showing that shading negatively impacts seagrasses. He had no prior knowledge of the Palmer dock design, seagrass coverage, or the depth of the water. When apprised of some information concerning Palmer's proposed dock, he admitted that the studies involved far more severe shading conditions than would be caused by the proposed dock. He could not testify that the Palmer dock design would harm seagrasses, with the exception of those actually removed by the installation of the pilings. Accidental boat propeller dredging in using a dock can be a secondary impact on seagrasses from dock construction. But while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the vicinity of the dock, which could result in a net reduction in the risk of damage to seagrasses from accidental prop dredging. Petitioners Dr. Franklin Pfeiffenberger, James Castoro, and Winifred Castoro jointly own a dock to the south of the Palmer property. This dock, which was built in the 1930's, projects 190 feet into Sarasota Bay and traverses seagrasses. Unlike the proposed Palmer dock, the Pfeiffenberger dock is not elevated, and it terminates in seagrasses. The seagrasses under the Pfeiffenberger dock are the same types as those located in the Palmer dock alignment--a combination of halodule wrightii and thalassia testudinum. The dock has been rebuilt a number of times over the years. Upon physical inspection, apparently healthy and growing seagrasses were found underneath the Pfeiffenberger dock. The proposed dock will not harm wildlife, including manatees (the only endangered species in the area, animal or plant). Manatees use Sarasota Bay in general, but the east side of the bay, where the Palmer property is located, is not a high use area. It is shallow and would not be considered "select" habitat for manatees. The proposed dock would not have any detrimental effect on manatee travel patterns; they could easily swim around the dock. Manatees eat seagrasses and other aquatic vegetation, but the proposed dock will not have significant adverse impact on those resources. Finally, while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the vicinity of the dock, which could result in a net reduction in the risk of injury to manatees in the area from boat collisions and prop scarring. Except for temporary turbidity during construction, no other water quality parameters will be violated as a result of the construction of Palmer's proposed dock. Palmer's proposed dock and its use will not significantly impede navigability in Sarasota Bay. The bay is approximately 18,000 feet wide at that point, and it is approximately 4,800 feet from Palmer's property to the Intracoastal Waterway. Since the water is shallow near shore in the vicinity of the Palmer property, relatively few boats frequent the area. Those that do are generally smaller boats. These boats easily could navigate so as to avoid the dock; very small boats, such as canoes and kayaks, might even be able to carefully pass under the elevated portion of the dock. Palmer's proposed dock also would not be a serious impediment to other recreational uses of Sarasota Bay in the area. The water is too shallow for swimming. Fishing could improve because the dock could attract baitfish. People could continue to wade-fish by walking around or even under the proposed dock. Palmer's proposed dock is aesthetically consistent with the area in which it is located. All the Petitioners have some sort of man-made structure projecting out into Sarasota Bay from their property. As already mentioned, Dr. Pfeiffenberger and the Castoros have a 190-foot dock projecting straight out into Sarasota Bay. Within the past five years, Dr. Pfeiffenberger has installed a bench to sit on at the end of the dock. To the north of the Palmer property, property owned by Mr. and Mrs. Cabaniss has a yacht basin formed by a sea wall that projects roughly perpendicular to the shoreline out into the bay. Immediately north of the Cabaniss property, there is a boat house on the Goldman property where it abuts the yacht basin. The Goldmans' boat house is approximately 20 feet in length and 10 feet in height from ground level. Immediately south of the Palmer property, Ms. Stenhouse has a small dock (which appears to be located over seagrasses.) As a result, the viewsheds of Palmer and the Petitioners already contain many docks and man- made structures. In addition, the Ringling Causeway and bridge can be seen from all of these properties. Palmer's proposed dock will appear in some views from the Petitioners' properties. Generally, the closer the neighbor, the more will be seen of Palmer's proposed dock. Some of the Petitioners will only be able to see the proposed dock if they go out to the westerly edge of their properties on the bay. While the proposed dock will appear in and alter these views, it will not eliminate any Petitioner's view of Sarasota Bay. Even the closest neighbors will have some unobstructed views around the proposed dock. It also will be possible to see over and under the proposed dock, similar to the way in which many of the Petitioners now enjoy their views. There are tall pine and palm trees on the Cabaniss property between their house and their view of the bay. Most of the other properties in the vicinity appear to have similar viewsheds. Ms. Stenhouse has a large stand of mangroves of the western edge of her property; they cover approximately 60 percent of the panorama from her house, but they are trimmed up so she can see through them. While some people would prefer not to have the Palmer dock there, other people might view the availability of single- family residential docks to be an asset to the properties in the neighborhood. Based on expert testimony, it cannot be found that property values in the area would go down as a result of Palmer's proposed dock. Palmer's proposed dock does little if anything to further the idealistic goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan to restore and expand seagrasses in Sarasota Bay in that the proposed dock will eliminate some seagrasses. However, only approximately 30 square feet of seagrasses will be lost. Otherwise, the proposed dock is consistent with other goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan in that the dock has been aligned and planned so as to minimize impacts on seagrasses while balancing the neighbors' desire to minimize the impact on their views of Sarasota Bay. Palmer's Riparian Rights Palmer and his wife received a Warranty Deed, dated August 27, 1993, from James Kirk, II, individually and as personal representative of the Estate of Marie Ferguson. The deed describes Lots 27 and 28 of the Indian Beach subdivision in Sarasota, Florida, with a western boundary "along the shores of Sarasota Bay." Palmer attached this deed to his applications. Since at least November 1992, the mean high water line of Sarasota Bay has been west of a seawall on the Palmer property. The evidence was clear that the seawall has been there since at least 1944 and that Palmer has not filled the area to the west of the seawall or built any structure that influences its existence. The evidence was not clear as to the creation and history of upland to the west of the seawall. From aerial photographs, it appears that at least some upland has existed to the west of the seawall at least from time to time for at least the last 30 years. For reasons no witness could explain, the Palmers also received a Warranty Deed from Kirk, dated September 3, 1993, purporting to convey title only up to the seawall on the Palmer property. Likewise for reasons no witness could explain, a land surveyor named Lawrence R. Weber prepared a boundary survey based on the description in the September 3, 1993, Warranty Deed. Also for reasons no witness could explain, the Palmers received a Quit Claim Deed from Kirk, dated October 20, 1993. This instrument quitclaimed to the Palmers "all of the Grantor's property to the mean high water line of Sarasota Bay, including riparian rights." Except for the mysterious September 3, 1993, Warranty Deed from Kirk, all deeds in the chain of title back to at least 1944 reflect an intention to convey riparian rights. A deed given by Helen and Frederick Delaute to Cecilia and Harold Wilkins, dated April 19, 1944, described the westerly boundary of the property as running northerly along the shores of Sarasota Bay and specifically referenced riparian rights. (This deed attached a survey showing the still-existing seawall.) The next deed in the chain of title was from the widowed Cecilia S. Wilkins to Edward and Laura Williams dated December 27, 1954. The metes and bounds description again referenced the westerly boundary as running along the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Edward and Laura Williams to Aidan and Wilma E. Dewey dated June 30, 1958. This deed again defined the westerly boundaries of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Aidan and Wilma Dewey to Edward and Marie Ferguson dated August 23, 1967. This deed again defined the westerly boundary of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order issuing Noticed General Environmental Resource Permit (No. 292583) and Consent of Use (No. 582819483) to Roy Palmer. DONE AND ENTERED this 1st day of September, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1998. COPIES FURNISHED: Richard Filson, Esquire Filson and Penge, P.A. 2727 South Tamiami Trail, Suite 2 Sarasota, Florida 34239 Thomas I. Mayton, Esquire T. Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 David M. Levin, Esquire Icard, Merrill, Cullis, Timm, Furen & Ginsburg Post Office Box 4195 Sarasota, Florida 34237 Alexandra St. Paul, Esquire The Riverview Center 1111 3rd Avenue, West Suite 350 Bradenton, Florida 34205 Kathy Carter, Agency Clerk Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Delbert W. Ogden holds license number CR 0051562 as a registered roofing contractor in the State of Florida. He held this registration at all times material to this action. Mr. Ogden was the qualifying agent for Sealtite Roofing and Waterproofing, Inc. from December 15, 1986 through May 30, 1987. The Watkins Contract On April 1, 1987, Sealtite Roofing and Waterproofing entered into a contract with Pauline Watkins (Ms. Watkins' name is now Pauline Watkins- Biddulph), to replace the roof on her home. The work included both a cement tile roof and a flat gravel roof. In her dealings with Sealtite Ms. Watkins dealt with a salesman, Tom Pagano. She never dealt with Mr. Ogden. Sealtite Roofing agreed to provide a written warranty on the roofing work for a period of 10 years. It delivered the Warranty when the work was completed. Ms. Watkins made a deposit with Sealtite at the time the contract was signed. A further amount was paid to Sealtite when the work has halfway finished, on April 27, 1987, and the final payment was made when the work was completed on May 1, 1987. At the time the house was reroofed, the weather was dry. After rain which occurred in late June, 1987, (almost two months after the work had been completed) Ms. Watkins had a number of leaks, the most serious being a leak in the kitchen. Ms. Watkins notified Mr. Pagano of the problem on June 30; the next day an inspector from Sealtite came to the house. Ms. Watkins then spoke with the office manager of Sealtite who informed her that the roofing would be removed and all water damage would be repaired, that new material to replace the roof had been ordered, and the new roofing material should arrive so that the corrective work could be done during the week of July 6, 1987. No one came in early July to repair the damage, so Ms. Watkins contacted the engineering department of the building division of the Village of North Palm Beach. Nothing came of that contact. Ms. Watkins again called the building inspector for the Village of North Palm Beach on July 22 and was advised to contact the Palm Beach County Construction Industry Licensing Board, because by that time Sealtite's phone had been disconnected. On July 23, 1987, a Mr. Slee, the owner of Sealtite, informed Ms. Watkins that her roof would be inspected again the next day. On July 24, two men appeared at Ms. Watkins' home, inspected the roof and left without speaking with Ms. Watkins. Ultimately, by August 13, 1987, Ms. Watkins complained to investigators with the Florida Department of Professional Regulation about the roofing company's failure to honor its warranty. On August 14, 1987 she was contacted by a Mr. Greg Martin, who claimed to be the qualifier for Sealtite at that time, and Mr. Slee. They were to arrange for repair of the roof by August 31, 1987, but they never did so. Mr. Ogden Delbert Ogden had disagreements with Mr. Slee, the owner of Sealtite Roofing, which caused him to resign as the qualifier for Sealtite with the Palm Beach County Construction Industry Licensing Board. His letter of resignation was mailed to the Palm Beach County Board on April 27, 1987. He followed this action with a latter to the State of Florida, Department of Professional Regulation, resigning as the qualifier for Sealtite with the State on May 14, 1987. As a result of his letter to the State, he received a receipt from the Jacksonville office of the Construction Industry Licensing Board on May 30, 1987, acknowledging that his license was placed on an inactive status. Mr. Ogden's first contact with Ms. Watkins was on November 6, 1987. He suggested that Ms. Watkins retain a lawyer to sue Mr. Slee and Sealtite. Ms. Watkins declined, maintaining that the dispute was between Mr. Ogden as the qualifier and Mr. Slee as the owner of the corporation which Mr. Ogden had qualified. Necessary Repairs Due to the inadequate work that was done on Ms. Watkins' roof by Sealtite, the roof had to be repaired. She paid $2,572.50 to remove and replace the roof Sealtite had installed, and also paid B & N Building Services $950.25 to repair the kitchen and porch ceilings and to replace a beam. She also paid 375 for new drywall, a repair to another damaged ceiling and other work done by another repair firm. Mr. Ogden's Past History with the Board On two occasions complaints had been made about Mr. Ogden's work to the Construction Industry Licensing Board. On September 9, 1987, the Board chairman signed a closing order finding there was probable cause to believe that Mr. Ogden did not obtain a permit in a timely manner, and on January 7, 1988, the chairman signed a closing order finding probable cause that Mr. Ogden had failed to honor a guarantee for work on a residential room addition. In both cases, Ogden was sent a letter of guidance. It appears that as the result of receiving the letter of guidance, Mr. Ogden was never provided an opportunity to formally dispute either of the complaints made against him. The mere fact that the Board found probable cause to believe Mr. Ogden may have violated Chapter 489 on prior occasions in no way proves that Mr. Ogden was actually guilty of misconduct on either occasion. There is no factual basis in the record for concluding that Mr. Ogden has been guilty of misconduct on prior occasions.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED that the Administrative Complaint filed against Delbert W. Ogden be dismissed. DONE and ORDERED this 4th day of May, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 5th day of May, 1989. APPENDIX The following constitute my rulings on proposed findings pursuant to Section 120.59(2), Florida Statutes. Findings Proposed by Department Covered in paragraph 1. Covered in paragraph 1. Covered in paragraph 2. Covered in paragraph 2. Covered in paragraph 4 Covered in paragraph 4. Covered in paragraph 4. Covered in paragraph 4. Covered in paragraph 4. Covered in paragraph 7. Subsidiary to the first clause in paragraph 7. To the extent relative, covered in finding of fact 5. Covered in finding of fact 5. Rejected as subordinate to finding of fact 1. Rejected as irrelevant. Rejected for the reasons stated In finding of fact 8. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Delbert W. Ogden 360 Selve Terrace West Palm Beach, Florida 33415 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Florida Construction Industry Licensing Board Post Office Drawer 2 Jacksonville, Florida 32201
