The Issue The issues are whether to (a) issue an Environmental Resource Permit (ERP) to the Department of Transportation (DOT) and Martin County (County) authorizing construction and operation of a surface water management system to serve a project known as the Indian Street Bridge; (b) issue DOT a letter of modification of ERP No. 43-00785-S authorizing roadway and drainage modifications to the Kanner Highway/Indian Street intersection; and (c) issue DOT a letter of modification of ERP No. 43-01229-P authorizing roadway and drainage modifications to Indian Street between the intersections of Kanner Highway and Willoughby Boulevard.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner Citizens for Smart Growth, Inc., is a Florida 501(c)(3) corporation with its principal place of business in Palm City, Florida. It was formed by Odias Smith in August 2001, who serves as its president. The original directors were Kathie Smith, Odias Smith, and Craig Smith, who is the Smiths' son. The composition of the Board has never changed. According to the original Articles of Incorporation, its objectives are "preserving and enhancing the present advantages of living in Martin County (Quality of Life) for the common good, through public education, and the encouragement of reasonable and considered decision making by full disclosure of impacts and alternatives for the most appropriate use of land, water and resources." The exact number of members fluctuates from time to time. There are no dues paid by any member. At his deposition, Mr. Smith stated that no membership list exists; however, Kathie Smith stated that she currently has a list of 125 names, consisting of persons who at one time or another have made a contribution, have attended a meeting, or asked to be "kept informed of what's going on or asked to be on a mailing list or a telephone list, so they could be advised when we have meetings." No meetings have been held since 2006. Therefore, the Petitions filed in these cases have never been discussed at any meetings of the members, although Ms. Smith indicated that telephone discussions periodically occur with various individuals. Kathie Smith believes that roughly 25 percent of the members reside in a mobile home park north of the project site on Kanner Highway on the eastern side of the St. Lucie River, she does not know how many members reside on the western side of the St. Lucie River, and she is unaware of any member who resides on the South Fork of the St. Lucie River immediately adjacent to the project. Although the three Petitions allege that "seventy percent of the members . . . reside and/or recreate on the St. Lucie River," and in greater detail they allege how those members use that water body or depend on it for their livelihood, no evidence was submitted to support these allegations that 70 percent (or any other percentage of members) use or depend on the South Fork of the St. Lucie River for recreational or other activities. Petitioners Odias Smith and Cathie Smith reside in Palm City, an unincorporated community just south of Stuart in Martin County. They have opposed the construction of the new bridge since they moved to Palm City in 2001. It is fair to infer that Mr. Smith formed the corporation primarily for the purpose of opposing the bridge. Their home faces north, overlooking the South Fork of the St. Lucie River, from which it is separated by Saint Lucie Shores Drive and a narrow strip of common-ownership property. A boat dock extends from the common-ownership property into the St. Lucie River, providing 5 slips for use by the Smiths and other co-owners. The home is located three blocks or approximately 1,000 feet from the proposed western landfall of the new bridge. Due to the direction that the house faces (north) and the site of the new bridge, the surface water management system elements associated with the bridge will not be visible from their property. Mr. Smith believes, however, that when looking south through a veranda window on the second floor of his home, he will be able to see at least a part of the new bridge. From the front of their house, they now have an unobstructed view of the existing Palm City Bridge, a large structure that crosses the St. Lucie River approximately six- tenths of a mile north of their home, and which is similar in size to the new bridge now being proposed by the Applicants. The Smiths' home is more than 500 feet from the Project's right- of-way, and they do not know of any impact on its value caused by the Project. While the Smiths currently engage in walking, boating, running, fishing, and watching wildlife in the neighborhood or the South Fork of the St. Lucie River, there was no credible evidence that the Project would prevent them from doing so after the bridge and other improvements are constructed. Also, there was no evidence showing that the ERP Letter Modifications will cause them to suffer any adverse impacts. In fact, as noted below, by DOT undertaking the Project, the neighborhood will be improved through reduced flooding, improved water quality, and new swales and ponds. The County is a political subdivision of the State. It filed one of the applications at issue in this proceeding. DOT is an agency of the State and filed the three applications being contested. The District has the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria pursuant to Part IV, Chapter 373, Florida Statutes, and Title 40E of the Florida Administrative Code. The Department of Environment Protection (DEP) has delegated certain authority to the District, including the authority to authorize an applicant to use sovereign submerged lands via a public easement within the District's geographic jurisdiction. The Project Construction of a new bridge over the St. Lucie River has been studied extensively by the Applicants for over twenty years. DOT has awarded the contract and nearly all of the right-of-way has been purchased. The Project will begin as soon as the remaining permits are acquired. The Project is fully funded through the American Recovery and Reinvestment Act of 2009 and County funding. The Project is located in the County and includes 62.06 acres of roadway bridge development and 12.45 acres of sovereign submerged lands. The Project begins on the west side of the St. Lucie River on County Road 714, approximately 1,300 feet west of Mapp Road in Palm City and ends on the east side of the St. Lucie River approximately 1,400 feet east of Kanner Highway (State Road 76) on Indian Street. It includes construction and operation of a surface water management system to serve the road and bridge project. The total length of the Project is approximately 1.96 miles (1.38 miles of roadway and 0.58 miles of bridge) while the total area is approximately 74.51 acres. After treatment, surface water runoff will discharge to the tidal South Fork of the St. Lucie River. The Project encompasses a bridge crossing the South Fork of the St. Lucie River and the Okeechobee Waterway. Both are classified as Class III waters. The bridge transitions from 4 to 6 lanes east of the Okeechobee Waterway and will require a 55-foot vertical clearance and a 200-foot horizontal clearance between the fender systems at the Okeechobee Waterway. The bridge will cross over a portion of Kiplinger Island owned and preserved by the County. A part of the island was donated to the County in 1993-1994 by The Kiplinger Washington Editors, Inc., and the Kiplinger Foundation, Inc. Audubon of Martin County owns another part of the island. The transfer of title to the County does not include any restriction on the use of the island for conservation purposes only. Documentation submitted at hearing refers to a "two hundred foot wide road right-of-way" easement that the bridge will cross and allows the County to designate where on the island parcel such an easement would be. Therefore, spanning the bridge over a portion of the island owned by the County is clearly permissible. The Project also includes the roadway transition and widening/reconstruction of (a) County Road 714 from the beginning of the Project to Mapp Road from 2-lane to a 4-lane divided roadway; (b) Southwest 36th Street from Mapp Road to the beginning of the bridge from a 2-lane rural roadway to a 4-lane divided roadway with wide roadway swales; and (c) Kanner Highway (along Indian Street) from a 4-lane to a 6-lane divided urban roadway. Drainage improvements on both sides of the St. Lucie River are associated with the roadway construction. DOT proposes to provide both on-site and off-site mitigation for wetland and surface waters impacts pursuant to a mitigation plan approved by the District. The ERP Permitting Criteria In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. Besides these rules, certain related BOR provisions which implement the rules must also be considered. The conditions for issuance primarily focus on water quality, water quantity, and environmental criteria and form the basis of the District's ERP permitting program. The parties have stipulated that the Project either complies with the following rule provisions or they are not applicable: Rules 40E-4.301(1)(a), (b), (g), (g), (h), and (k), and 40E- 4.302(1)(a)3. and 6. All other provisions remain at issue. Where conflicting evidence on these issues was submitted, the undersigned has resolved all evidentiary conflicts in favor of the Applicants and District. Based on the parties' Stipulation, the following provisions in Rule 40E-4.301(1) are in dispute and require an applicant to provide reasonable assurances that the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system: will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters; will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62- 4, 62-302, 62-520, 62-522, 62-550, F.A.C., including any anti-degradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated; will not cause adverse secondary impacts to the water resources; will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed; will be conducted by an entity with sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; These disputed criteria are discussed separately below. Surface Water Storage and Conveyance Rule 40E-4.301(1)(c) requires that an applicant provide reasonable assurances that a proposed activity will not cause adverse impacts to existing surface water storage and conveyance capabilities. Through unrefuted evidence, this requirement was shown to be satisfied. The evidence also establishes that the surface water in and around the Project will actually improve if the Project is constructed as permitted. Further, it will create improved and upgraded surface water management and treatment in areas that now lack features such as swales, retention/detention ponds, curbs and gutters, and improve the overall surface water storage and conveyance capabilities of the Project and surrounding areas. In its current pre-development condition, flooding has occurred in certain areas adjacent to and within the Project area due to poor conveyance, low storage volume, and high tailwater conditions that result from high tides. The Project will remedy historic flooding issues in the Old Palm City area which lies adjacent to a portion of the Project alignment. Surface water runoff will be captured, controlled, and treated by a system of swales, weirs, and retention/detention facilities for pretreatment prior to discharging into the South Fork of the St. Lucie River. Reasonable assurances have been given that existing surface water storage and conveyance capabilities will not be adversely affected. Value of Functions to Fish, Wildlife, and Species Rule 40E-4.301(1)(d) requires that an applicant provide reasonable assurances that a proposed activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. BOR Section 4.2.2 further implements this provision. For the following reasons, the rule and BOR have been satisfied. The evidence shows that the existing functions to fish and wildlife were assessed and analyzed by a number of federal and state fish and wildlife agencies. There were extensive review and site inspections by the District, DOT, United States Fish and Wildlife Service, United States Army Corps of Engineers, and National Marine Fisheries Commission to assess the existence of, and potential impact on, fish and wildlife that may result from the Project. These studies revealed that while portions of the South Fork of the St. Lucie River provide potential habitat for aquatic or wetland-dependent or threatened species of special concern, no nesting or roosting areas within the vicinity of the Project were observed. The evidence further supports a finding that "other surface waters" over and under the Project will not receive unacceptable impacts due to their current condition, the detrimental influences of Lake Okeechobee discharges, and tidal impacts. Many of the wetlands to be impacted by the Project were shown to have been impacted by historic activities, and they provide diminished functions to fish and wildlife. The wetland functions were assessed through the Uniform Mitigation Assessment Methodology (UMAM). The UMAM is a standardized procedure for assessing the functions provided by wetlands and other surface waters, the amount that those functions would be reduced by a proposed project, and the amount of mitigation necessary to offset that loss. Detailed UMAM assessments were prepared by the Applicants and the District. They demonstrate that while certain functional units will be lost, they will be fully offset by the proposed mitigation. No credible evidence to the contrary was presented. Water Quality of Receiving Waters Rule 40E-4.301(1)(e) requires an applicant to provide reasonable assurances that a project will not adversely affect the quality of receiving waters such that State water quality standards will be violated. BOR Section 4.2.4 implements this rule and requires that "reasonable assurances regarding water quality must be provided for both the short term and long term, addressing the proposed construction, . . . [and] operation of the system." The receiving water body is the South Fork of the St. Lucie River, which is designated as an impaired water body. The evidence establishes that the Applicants will avoid and minimize potential short-term impacts to water quality by using silt screens and turbidity barriers, and implementing other best management practices to contain turbidity during construction of the Project. They will also use a temporary trestle rather than barges in the shallow portions of the South Fork to avoid stirring up bottom sediments. Finally, a turbidity monitoring plan will be implemented during construction and dewatering activities for all in-water work. All of these construction techniques will minimize potential impacts during construction. The evidence further establishes that water quality standards will not be violated as a result of the Project. In fact, in some cases water quality will be enhanced due to the installation and maintenance of new or upgraded surface water management features in areas where they do not exist or have fallen into disrepair. Over the long term, the Project is expected to have a beneficial effect on water quality. By improving existing surface water management and adding new surface water treatment features, the Project will provide net improvement to water quality. Wetland Delineation and Impacts The Project includes unavoidable impacts to wetlands and other surface waters. A total of 18.53 acres of wetlands and other surface waters within the Project site will be impacted by the Project, including 3.83 acres of wetlands that will be directly impacted and 14.7 acres of wetlands and other surface waters that will be secondarily impacted. The delineated wetlands are depicted in the Staff Report as wetlands 2a, 19a, 19b, 22, 25-29, 30a, 30b, and 30c, with each having a detailed UMAM assessment of its values and condition. (Impacts to wetland 25 are not included in this Project because they were accounted for in a separate permit proceeding.) Using a conservative assessment and set of assumptions, the District determined that, with the exception of wetlands 19a, 19b, 22, and 27, all wetlands would be impacted by the Project. However, the wetlands that would be impacted suffer from varying historical adverse impacts that have compromised the functions and values they provide to fish, wildlife, and species. This is due to their proximity to urban development, vegetative connectivity, size, historic impacts, altered hydroperiod, and invasive plant species. Likewise, even though the wetlands to be impacted on Kiplinger Island provide certain resting and feeding functions for birds, the value of these functions is comparatively lower than other wetlands due to the presence of invasive species and lack of management. The preponderance of the evidence supports a finding that the Applicants provided reasonable assurances that the Project will not cause adverse impacts to fish, wildlife, or listed species. See Fla. Admin. Code R. 40E-4.301(1)(d). Secondary Impacts Rule 40E-4.301(1)(f) and BOR Sections 4.1.1(f) and 4.2.7. require a demonstration that the proposed activities will not cause adverse secondary impacts to the water resources, both from a wetlands and water quality standpoint. Secondary impacts are those that occur outside the footprint of the project, but which are very closely linked and causally related to the activity to be permitted. De minimis or remotely-related secondary impacts, however, are not considered unacceptable. See § 4.2.7.(a). There will be secondary impacts to 6.83 acres of freshwater wetlands and 7.87 acres of mangroves, or a total of 14.7 acres. To address these secondary impacts, the Applicants have established extensive secondary impact zones and buffers along the Project alignment, which were based in part on District experience with other road projects and another nearby proposed bridge project in an area where a State Preserve is located. While Petitioners' expert contended that a 250-foot buffer on both sides of the roadway's 200-foot right-of-way was insufficient to address secondary impacts to birds (who the expert opines may fly into the bridge or moving vehicles), the greater weight of evidence shows that bird mortality can be avoided and mitigated through various measures incorporated into the Project. Further, the bird mortality studies used by the expert involved significantly different projects and designs, and in some cases involved projects outside the United States with different species concerned. Engineering and Scientific Principles Rule 40E-301(1)(i) requires that an applicant give reasonable assurance that a project "be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Unrefuted evidence establishes that the proposed system will function and be maintained as proposed. Financial, Legal and Administrative Capability Rule 40E-4.301(1)(j) requires that an applicant give reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms of the permit. The evidence supports a finding that Applicants have complied with this requirement. Elimination and Reduction of Impacts Before establishing a mitigation plan, Rule 40E- 4.301(3) requires that an applicant implement practicable design modifications to eliminate and reduce wetland and other surface water impacts. In this case, there are unavoidable, temporary wetland impacts associated with the construction of the Project, as well as unavoidable wetland impacts for direct (project footprint), secondary, and cumulative impacts of the Project. The record shows that the Applicants have undertaken extensive efforts to eliminate and reduce wetland and other surface water impacts of the Project. For example, DOT examined and assessed several innovative construction techniques and bridge designs to eliminate and avoid wetland impacts. To eliminate and reduce temporary impacts occurring during construction, DOT has reduced the effect of scour on the pier foundation and reduced the depth of the footing to minimize the amount of excavation on the mangrove island. Also, during construction, the contractor is prohibited from using the 200- foot right-of-way on the mangrove island for staging or stockpiling of construction materials or equipment. The majority of the bridge width has been reduced to eliminate and avoid impacts. Also, the Project's alignment was adjusted to the north to avoid impacts to a tidal creek. Reasonable assurances have been given that all practicable design and project alternatives to the construction and placement of the Project were assessed with no practicable alternatives. Public Interest Test Besides complying with the requirements of Rule 40E- 4.301, an applicant must also address the seven factors in Rule 40E-4.302(1)(a)1.-7., which comprise the so-called "public interest" test. See also § 373.414(1)(a), Fla. Stat. In interpreting the seven factors, the District balances the potential positive and negative effects of a project to determine if it meets the public interest criteria. Because Petitioners agree that factors 3 and 6 of the rule are not at issue, only the remaining five factors will be considered. For the following reasons, the Project is positive when the criteria are weighed and balanced, and therefore the Project is not contrary to the public interest. Public Health, Safety, and Welfare The Applicants have provided reasonable assurance that the Project will not affect public health, safety, and welfare. Specifically, it will benefit the health, safety, and welfare of the citizens by improving traffic conditions and congestion, emergency and hurricane evacuation, and access to medical facilities. In terms of safety, navigation markers are included as part of the Project for safe boating by the public. See Fla. Admin. Code R. 40E-4.302(1)(a)1. Conservation of Fish and Wildlife The activity will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The mitigation projects will offset any impacts to fish and wildlife, improve the abundance and diversity of fish and wildlife on Kiplinger Island, create mangrove habitat, and add to the marine productivity in the area by enhancing water quality. See Fla. Admin. Code R. 40E-302(1)(a)2. Fishing or Recreational Values The Project has features that allow for pedestrian and bicycle utilization and observation areas which should enhance recreational values. The Old Palm Bridge, approximately one mile north of the Project, has had no adverse impact on the fishing recreation along the South Fork of the St. Lucie River. Navigation will not be affected due to the height and design of the new bridge. Finally, the bridge is expected to be a destination for boating, kayaking, fishing, and bird watching. See Fla. Admin. Code R. 40E-4.302(1)(a)4. Whether the Activity is of a Permanent Nature The parties have stipulated that the Project is permanent in nature. No future activities or future phases of the project are contemplated. Temporary and permanent impacts are all being fully mitigated. See Fla. Admin. Code R. 40E- 4.302(1)(a)5. Values of Functions Being Performed in Affected Areas Due to historic impacts to the areas affected by the Project, the current condition is degraded and the relative value of functions is minimal. Although Kiplinger Island will have temporary impacts, that island is subject to exotic species and has no recreational use or access by boaters or members of the public. The Applicants propose mitigation which will improve and enhance these wetland functions and values in the areas. See Fla. Admin. Code R. 40E-4.302(1)(a)7. Summary The evidence supports a finding that the Project is positive as to whether it will affect the public health, safety, welfare, or property of others; that the Project is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the Project is positive as to conservation of fish, wildlife, recreational values, marine productivity, permanency, and current values and functions. When weighed and balanced, the Project is not contrary to the public interest. Cumulative Impacts Rule 40E-4.302(1)(b) requires that an applicant give reasonable assurance that a project will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in BOR Sections 4.28 through 4.2.8.2. Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin. An analysis is geographically based upon the drainage basins described in BOR Figure 4.4.1. Petitioners' contention that Figure 4.4.1 is inaccurate or not representative of the basin in which the Project is located has been rejected. In this case, the North St. Lucie Basin was used. To assess and quantify any potential unacceptable cumulative impacts in the basin, and supplement the analyses performed by the Applicants, the District prepared a Basin Map that depicted all the existing and permitted wetland impacts as well as those wetlands under some form of public ownership and/or subject to conservation restrictions or easements. The District's analysis found that the wetlands to be mitigated were of poor quality and provided minimal wildlife and water quality functions. Cumulative impacts from the Project to wetlands within the basin resulted in approximately a four percent loss basin-wide. This is an acceptable adverse cumulative impact. Therefore, the Project will not result in unacceptable cumulative impacts. Mitigation Adverse impacts to wetlands caused by a proposed activity must be offset by mitigation measures. See § 4.3. These may include on-site mitigation, off-site mitigation, off- site regional mitigation, or the purchase of mitigation credits from mitigation banks. The proposed mitigation must offset direct, secondary, and cumulative impacts to the values and functions of the wetlands impacted by the proposed activity. The ability to provide on-site mitigation for a DOT linear transportation project such as a bridge is limited and in this case consists of the creation of mangrove and other wetlands between the realigned St. Lucie Shores Boulevard and the west shore of the St. Lucie River, north and south of the proposed bridge crossing. BOR Section 4.3.1.2 specifically recognizes this limitation and allows off-site mitigation for linear projects that cannot effectively implement on-site mitigation requirements due to right-of-way constraints. Off-site mitigation will offset the majority of the wetland impacts. Because no single on-site or off-site location within the basin was available to provide mitigation necessary to offset all of the Project's impacts, DOT proposed off-site mitigation at two established and functioning mitigation areas known as Dupuis State Reserve (Dupuis), which is managed by the County and for which DOT has available mitigation credits, and the County's Estuarine Mitigation Site, a/k/a Florida Oceanographic Society (FOS) located on Hutchinson Island. Dupuis is outside the North St. Lucie Basin and was selected to offset direct and secondary impacts to freshwater wetlands. That site meets the ERP criteria in using it for this project. The FOS is within the North St. Lucie Basin and was selected to offset direct and secondary impacts to estuarine wetlands. Like Dupuis, this site also meets the ERP criteria for the project. The preponderance of the evidence establishes that the on-site and off-site mitigation projects fully offset any and all project impacts, and in most instances before the impacts will actually occur. Sovereign Submerged Lands and Heightened Public Concern Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. For purposes of granting a public easement to the Applicants, the District determined that the Project is not contrary to the public interest and that all requirements of the rule were satisfied. This determination was not disputed. The only issue raised by Petitioners concerning the use of submerged lands is whether the application should have been treated as one of "heightened public concern." See Fla. Admin. Code R. 18-21.0051(5). If a project falls within the purview of that rule, the Board of Trustees of the Internal Improvement Trust Fund (Board), rather than the District, must review and approve the application to use submerged lands. Review by the Board is appropriate whenever a proposed activity is reasonably expected to result in a heightened public concern because of its potential effect on the environment, natural resources, or controversial nature or location. Id. In accordance with established protocol, the ERP application was sent by the District to DEP's review panel in Tallahassee (acting as the Board's staff) to determine whether the Project required review by the Board. The panel concluded that the Project did not rise to the level of heightened public concern. Evidence by Petitioners that "many people" attended meetings and workshops concerning the Project over the last 20 years or so is insufficient to trigger the rule. Significantly, except for general project objections lodged by Petitioners and Audubon of Martin County, which did not include an objection to an easement, no adjacent property owner or other member of the public voiced objections to the construction of a new bridge. Revised Staff Report On October 20, 2010, the District issued a Revised Staff Report that merely corrected administrative errors or information that had been previously submitted to the District. Contrary to Petitioners' assertion, it did not constitute a material change to the earlier agency action either individually or cumulatively. Therefore, it was properly considered in this proceeding. Letter Modifications The Letter Modifications were used as a mechanism to capture minor alterations made to previously issued permits for Kanner Highway and Indian Street. Neither Letter Modification is significant in terms of water quality, water quantity, or environmental impacts. Both were issued in accordance with District rules and should be approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Application Nos. 091021-8, 100316-7, and 100316-6. DONE AND ENTERED this 28th day of December, 2010, 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 28th day of December, 2010. COPIES FURNISHED: Carol Ann Wehle, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 Jeffrey W. Appel, Esquire Ray Quinney and Nebeker, P.C. 36 South State Street, Suite 1400 Salt Lake City, Florida 84111-1401 Bruce R. Conroy, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 David A. Acton, Esquire Senior Assistant County Attorney Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3397 John J. Fumero, Esquire Rose, Sundstrom & Bentley, P.A. 950 Peninsula Corporate Circle Suite 2020 Boca Raton, Florida 33487-1389 Keith L. Williams, Esquire South Florida Water Management District 3301 Gun Club Road Mail Stop 1410 West Palm Beach, Florida 33406-3007
Findings Of Fact Based upon the above testimony and the exhibits received into evidence in this cause, the undersigned Hearing Officer makes the following findings of fact with regard to the issue in dispute: The applicants, as owners and lessees of 3,300 acres of land to be used for sugar cane production, propose to install a surface water management system consisting of levees, ditches, culverts, and pumps for drainage and irrigation purposes. Irrigation will be drawn from and drainage water will be discharged into Canal 51, a project works of the FCD. There is no dispute between the applicant and the FCD staff concerning the permit for water use and connection to C-51. The applicant proposes to discharge, via two 30,000 gallon per minute pumps, one inch per acre per day or 62,239 gallons per minute into C-51. The soils on the applicants' land are primarily muck types which are high in organic nitrogen. A water level of three feet below ground level, as proposed, will probably cause such nitrogen in the muck soil to decompose, resulting in soil subsidence and production of inorganic nitrogen. Nutrients (primarily nitrogen and phosphorus) resulting from muck decomposition and crop fertilization may enter the water in the interior canals and cause such water to have a higher nutrient content. The water in Canal 51 now has low concentrations of nutrients, as compared with the waters in canals appurtenant to other sugar cane producing areas. There appear to be unique hydrological conditions on the land in question which may keep the drainage system flushed and nitrate-free and there is evidence that sawgrass areas act as an effective nutrient filter. There was no evidence that additional nutrients entering C-51 would be environmentally harmful or degrading to the waters in C-51, both parties admitting that further research and scientific data is needed to determine the safe level of nutrients in this area. The applicants and other interested groups have shown that the construction. and operation of a retention or impoundment area would cause an adverse economic impact upon landowners and would have an adverse economic effect upon consumers, the general labor force and the community. The FCD has not adequately demonstrated that the waters of C-51 would be degraded by the applicants' proposed project or that a 140 acre impoundment area would be a reasonable condition to impose upon the issuance of the permits in question. A water quality monitoring system, such as proposed in the original and revised staff reports, will permit the parties to determine whether the water in C-51 is being degraded by the addition of nutrients.
Recommendation Based upon the above cited testimony, evidence, findings of fact and conclusions off law, the following recommendations are made: It is recommended that a water use permit, a Surface water management permit and a right-of-way occupancy permit be issued, all in accordance with the recommendations and conditions set forth in the original Staff Report dated August 5, 1975, attached hereto as Exhibit A. It is recommended that the additional requirement of a 140-acre retention area set forth in the Revised Staff Report be rejected. It is further recommended that an additional condition be attached to the surface water management permit. That condition would be to have such permit expire at the same time as the water use permit; to wit: July 15, 1977, so as to allow the FCD and the applicants sufficient time to collect further data on the effect of nutrients on the waters of C-51 and compare said data with the information derived from the monitoring program required under the permits. If such data and comparisons sufficiently demonstrate that the waters of C-51 will be degraded by the applicants' project, a retention area requirement would then be a reasonable condition to the reissuance of a permit. Respectfully submitted and entered this 20th day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George H. Bailey, Esquire JONES, PAINE & FOSTER, P.A. 601 Flagler Drive Court Post Office Drawer E West Palm Beach, Florida 33402 John Wheeler, Esquire Attorney for the Central and Southern Florida Flood Control District Post Office Box V West Palm Beach, Florida =================================================================
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
The Issue The issue in this case is whether the Southwest Florida Water Management District (SWFWMD) should grant Individual Environmental Resource Permit (ERP) Application No. 4316067.00 for approval of a proposed surface water management system (SWMS) for a planned road improvement project.
Findings Of Fact County Line Road extends a short distance east from its intersection with U.S. 41, approximately along the boundary between Pasco County and Hillsborough County. It currently serves as access to residential and rural areas in its vicinity but does not connect with any major road east-west roadway at its eastern end. Since at least 1995, Pasco County's Metropolitan Planning Organization (MPO) has considered it necessary by 2020 to connect County Line Road to Collier Parkway (which runs north and south to the east and north of County Line Road but connects at its southern end to Hillsborough County Road, which extends from there to the east) to create and serve as another major east-west roadway to alleviate traffic congestion on State Road 54 to the north. The MPO's plans are updated continually, most recently in 1998. The MPO's current plans call for building a half-mile segment of two-lane roadway by 2000 to connect County Line Road to Collier Parkway and widening it to a four-lane road by 2010. Once these plans were made, and the general corridor for the new roadway chosen by the MPO, Pasco County conducted a route study and decided to utilize and improve the existing County Line Road to the extent possible consistent with traffic safety considerations before routing the new roadway to the northeast towards a connection with existing roadway (known as Willow Bend Road), which in turn connects with Collier Parkway. In so doing, Pasco County would improve County Line Road where it now crosses 13-Mile Run Creek. 13-Mile Run Creek is the name for the water body and wetland area crossed by County Line Road. It is part of a system of connected lakes, wetland areas, and various natural and man- made water conveyances known as the 13-Mile Run that begins to the north of County Line Road in Pasco County and flows south into Cypress Creek and the Hillsborough River in Hillsborough County. After completing the route study, Pasco County surveyed the project area and identified wetlands in the project area. Then, the road improvements and new roadway, including the surface water management system, were designed. Pasco County designed its road project to accommodate widening to four lanes in 2010 without further direct impact to wetlands. This will allow traffic to flow much more safely on the two lanes built in 2000 while the additional two lanes are built in 2010. As part of this design, the culverts that will provide for north-to-south flow of 13-Mile Run under the roadway, as well as the animal-crossing tunnels under the roadway, will be oversized to accommodate the four-lane roadway in 2010. As a result, all direct impacts to wetlands from the ultimate four- lane road construction (approximately 1.5 acres of direct impact) will occur during the initial construction of two lanes in 2000; there will not have to be any additional wetland impacts in 2010. The Petitioner and Intervenors contend that Pasco County did not prove a need for the four-lane road Pasco County proposes for 2010. They point to evidence that Florida Department of Transportation (DOT) 1995 maps did not "code" the proposed road segment as a four-lane road in 2010, as well as evidence that in 1995 Hillsborough County objected (based on the DOT coding) to Pasco's plans for a four-lane road in 2010. But Pasco County proved that DOT's failure to code the proposed road segment as a four-lane road in 2010 was a mistake. Since 1995, DOT has corrected the error. When Pasco County's MPO updated its transportation plan in 1998, neither Hillsborough County nor anyone else objected to the plans for a four-lane road in 2010, despite Pasco County's solicitation of comments and advertised public workshops and hearings. The Intervenors in particular also point to evidence that the DOT has published "Standards for Low and High Volume Highways in Annual Average Daily Volumes" in a Manual of Uniform Minimum Standards for Design, Construction and Maintenance for streets and Highways (1994)(also known as the "Green Book"). These standards characterize a two-lane urban collector highway with less than 11,000 AADT and a four-lane urban collector highway with less than 37,000 AADT as low-volume facilities and characterize a two-lane urban collector highway with more than 16,000 AADT and a four-lane urban collector highway with more than 45,000 AADT as high-volume facilities. Meanwhile, there was evidence was that, using a regional traffic demand forecasting model developed by DOT to determine future transportation needs for planning purposes: (1) Pasco County's MPO forecasts approximately 12,500 to 13,000 vehicles per day on the road in 2010 and 16,000 vehicles per day on the road in 2020; and (2) in 1997, the MPO forecasts 12,000 vehicles per day (1078 peak hour) on the road by 2015. But the only explanation of this evidence was the testimony of the MPO's transportation planner that the "Green Book" is not used for purposes of planning to meet future transportation needs. There was no other evidence as to the significance or proper use of the "Green Book." Assuming that AADT means "annual average daily trips" (there was no evidence as to what it stands for), there was no evidence that the Pasco County MPO's plan to four-lane County Line Road in 2010 is inconsistent with the "Green Book." The Intervenors also contend that the planned widening of State Road 54 will eliminate the need to four-lane the proposed road improvements at County Line Road. But the MPO's transportation planner testified that the MPO's forecast of the need to do so took into account the planned State Road 54 improvements. The Intervenors also contend that the proposed road improvements at County Line Road will not serve as an alternative to State Road 54 because Collier Parkway is a north-south highway, not an east-west highway. But, as indicated in Finding 1, supra, utilizing Collier Parkway for a short, north-south jog will connect the east-west roadways on either side of Collier Parkway. The Petitioner and Intervenors contend that Pasco County's design does not minimize direct impacts to wetlands precisely because it is designed to accommodate the four-lane widening project in 2010. Clearly, the direct impact to wetlands in 2000 could be reduced if Pasco County's design only accommodated a two-lane road. But it is not clear that the cumulative impact to the wetlands through the year 2010 will be less if the wetlands have to be impacted twice, once in 2000 for two lanes of roadway and again in 2010 for the other two lanes. A Department of Environmental Protection (DEP) witness for the Intervenors believed that it was preferable not to accommodate two additional lanes during the initial construction. But his familiarity with Pasco County's application was limited (in part because DEP has no regulatory jurisdiction), and several other experts testified persuasively that Pasco County's design would be better in terms of minimizing total, cumulative direct and secondary impacts to the wetlands. It also would cost significantly less to build the four-lane road in two stages if the first stage of construction of two lanes accommodates the subsequent stage of construction of the two additional lanes. In addition, traffic flow would be safer during construction of the two additional lanes if the first stage of construction accommodates the subsequent stage. Given the plan to accommodate a four-lane road in 2010, Pasco County designed its road project to minimize direct impacts on wetlands. First, the design uses the existing road in the wetland area. Second, the design uses concrete retaining walls instead of earthen berms in the wetland areas, which reduces the direct impact to the wetland areas by 30 percent. Third, the design was modified to further reduce the direct impact to wetlands by reducing the width of the median and eliminating one of two sidewalks at the creek crossing. The only way to further reduce the direct impacts to wetlands would have been to design and construct a bridge to cross the wetlands. The Intervenors called their DEP witness to testify in support of their contention that Pasco County should be required to bridge the wetlands. But again, the DEP witness's knowledge of Pasco County's application was limited, and several other witnesses testified persuasively that such a requirement for this road improvement project would be unreasonable in light of the existing County Line Road (which is a fill road.) In addition, bridging 13-Mile Run would create water flow and quantity problems that would have to be addressed, since it would remove the existing roadbed that serves to stop flow in times of high water. See Finding 19, infra. Pasco County's design provides for two wet detention ponds, one at either end of the project area, that will treat one-inch of runoff from the project area and will retain all of the runoff from a 25-year, 24-hour storm (nine inches of runoff.) As a result, there are reasonable assurances that there will be no adverse impact on water quality from the project; to the contrary, water quality probably will improve since the existing County Line Road does not provide any water treatment. Likewise, Pasco County has provided reasonable assurances that water discharges from the project area will not increase. As a result of the project, approximately 3.5 acre-feet of flood plain storage will be eliminated. To more-than- compensate for this loss of flood plain water storage area, Pasco County's design includes a flood plain mitigation area of approximately 4.5 acre-feet with a connection to 13-Mile Run Creek. The flood plain mitigation area also will serve as the project's wetland mitigation area at a ratio of approximately 4- to-1, i.e., four acres of created wetland for each acre of direct wetland impact. (Wetlands disturbed by the illegal installation of a Florida Gas Transmission pipeline just north of County Line Road and now under court-ordered restoration are considered pristine wetlands for purposes of the wetland mitigation ratio.) While wetland restoration has a mixed record of success, and it may be difficult to restore all of the values of the original wetland, the prospects for success of Pasco County's proposed wetland mitigation area are reasonably good. The mitigation plan calls for planting 780 emergent woody species per acre. To the extent that the mitigation plan for this project will replace disturbed wetlands and wetlands not successfully restored by the restoration of the area impacted by the Florida Gas Transmission pipeline (which appears to have been either inadequately planned or poorly implemented), the project may well result in a net improvement of the wetlands in the 13-Mile Run Creek area. Impacts from the roadway immediately to the west of the project area have been addressed in the SWMS permit for construction at the intersection of U.S. 41 and County Line Road. Impacts from Hillsborough County's planned widening of the roadway immediately to the west of the project area will be addressed in the SWMS for that widening project. The Petitioner in particular raised the question of flooding in the vicinity--at the U.S. 41/County Line Road intersection and along the shores of Hog Island Lake to the southeast of the creek crossing. The Intervenors initially also raised those questions but have been satisfied by the assurances given by Pasco County that the proposed project will not increase flooding in those areas. The SWMS associated with construction of the U.S. 41/County Line Road intersection appears to have been successful in alleviating flooding there, and Pasco County has given reasonable assurances that the proposed road project in this case will not increase flooding in the Hog Island Lake area. The generous flood retention compensation proposed by Pasco County may alleviate flooding in the Hog Island Lake area to some extent. It also is noted that, if the project were modified to bridge the creek crossing (without any other modifications), flooding in the Hog Island Lake area could increase. See Finding 13, supra. The Petitioner also opposed Pasco County's SWMS application on the ground that no minimum surface or ground water levels or minimum surface water flows have been established in the area under Section 373.042, Florida Statutes (1997). But Pasco County provided reasonable assurances that, regardless where the minimum levels ultimately are set, the proposed project will have no appreciable effect. Pasco County has designed the project to maintain water current flows and quantities. It is found that Pasco County has implemented practicable design modifications to reduce or eliminate adverse impacts of the proposed project. (As used here, the term "modification" does not include the alternative of not implementing the SWMS in some form, nor the alternative of a project that is significantly different in type or function from that proposed.) As used in the preceding finding, the term "practicable" would eliminate modifications which would adversely affect public safety through the endangerment of lives or property. For example, one modification suggested by the Petitioner and Intervenors would have been to have the new road follow existing County Line Road further to the east. However, that would have made the connection between the new road and what would remain of County Line Road hazardous at the design speed of the new road and, depending on how much further east the new road follow existing County Line Road, there would be the hazard of residential driveways connecting to the new road. As used in Finding 21, the term "practicable" also would eliminate modifications which are not technically capable of being done or not economically viable. While there was no evidence that alternatives considered in this case were either not technically capable of being done or not economically viable, general consideration was given to the higher total project costs of not accommodating the planned addition of two lanes in 2010 (with no appreciable environmental benefit). Likewise, general consideration was given to the significantly higher cost (approximately two to three times as much, depending on whether the construction of the first two lanes accommodates the subsequent construction of the two additional lanes) to bridge the wetlands in an attempt to reverse direct wetland impacts from the existing fill road and somewhat decrease additional direct wetland impacts, as well as the dubious benefits of increasing the flow of 13-Mile Run, which certainly would not reduce (and might well increase) flooding in the Hog Island Lake area. In addition, bridging the creek crossing would create traffic engineering problems in providing access to residential areas in the vicinity, especially the Foxwood subdivision. Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions, will not violate state water quality standards applicable to waters as defined in Section 403.031(13), Florida Statutes (1997). Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions, will not be contrary to the public interest, considering and balancing the following factors: Whether the proposed project will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, Florida Statutes (1997); and The current condition and relative value of functions being performed by areas affected by the proposed activity. To the extent that the proposed project may not meet one or more of the public interest test criteria, Pasco County proposes mitigation measures that will offset any adverse effects. Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions: will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on- site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District; will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62-3, 62-4, 62-302, 62-520, 62-522 and 62-550, Florida Administrative Code, including any antidegradation provisions of sections 62- 4.242(1)(a) and (b), 62-4.242(2) and (3), and 62-302.300, Florida Administrative Code, will be violated; will not cause adverse secondary impacts to the water resources; will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes (1997); will not cause adverse impacts to a work of the District established pursuant to Section 373.086; is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed; and 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. Pasco County provided reasonable assurances that that its proposed SWMS, with SWFWMD's general and specific conditions, will not cause unacceptable cumulative impacts upon wetlands and other surface waters, as delineated pursuant to the methodology authorized by subsection 373.421(1), Florida Statutes (Supp. 1998).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order granting ERP Application No. 4316067.00. DONE AND ENTERED this 18th day of March, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1999. COPIES FURNISHED: Charles J. Traina, Esquire Post Office Box 625 Brandon, Florida 33509-0625 Margaret Lytle, Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Mark F. Lapp, Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Barbara Wilhite, Esquire Pasco County West Pasco Government Center 7530 Little Road, Suite 340 New Port Richey, Florida 34654 David and Sheryl Bowman, pro se Post Office Box 1515 Lutz, Florida 33548-1515 E. D. Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact The Applicant/Respondents, Melvin and Mary Thayer have applied to the Department of Environmental Regulation (Department) for a "dredge and fill permit" seeking authorization to remove an existing 32-foot wooden fence and install in its place a chain-link fence, which as originally applied for would not extend more than 32 feet waterward from the 64-foot mean sea level elevation of Alligator Lake as marked by the waterward end of the existing wooden fence. The fence proposed would be five feet high and would possess a gate at its landward end which would permit pedestrian passage in both directions around the near-shore area of the lake. The project site is located approximately 400 feet south of U.S. 441-192 and adjacent to Alligator Lake, lying one mile west from Bay Lake within Section 10, Township 26 South, Range 31 East in Osceola County, Florida. As clarified and amended prior to hearing, the application now requests the permit to authorize, instead, a 26-foot fence extending that distance waterward from the 64-foot mean sea level elevation. The Department has permitting jurisdiction under Chapters 253 and 403, Florida Statutes as well as Chapter 17-4, Florida Administrative Code. There is no dispute that the Department has jurisdiction of the permitting of the subject fence inasmuch as the fence would be constructed waterward of the 64-foot mean sea level elevation or the "high pool" level of Alligator Lake in Class III waters of the state. Additionally, the area of the project waterward of the 64- foot mean sea level elevation lies on sovereign lands of the State of Florida under the jurisdiction of the Department of Natural Resources. That Department, as yet, has not issued a permit for use of sovereign land for the intended purpose as envisioned by Section 253.77, Florida Statutes. Ed Edmunson was tendered by both Respondents as an expert witness and was accepted as to his expertise in biological assessment of dredge and fill construction projects. It was thus established that the construction and installation of the fence and removal of the existing fence would cause no Class III water quality violations. Additionally, it was established that no navigational impediment would result from the fence as presently proposed which only involves a 26-foot fence extending from the 64-foot mean sea level elevation waterward in a perpendicular direction from the shore and near-shore of Alligator Lake. Parenthetically it should be noted that the original proposal involved extending the fence 32-feet waterward and then installing a right angle section parallel to the shoreline for an indeterminate distance. The right angle portion of the fence has been deleted from the permit application and the portion perpendicular to the shoreline has been amended from 32 feet down to 26 feet from the 64-foot mean sea level elevation. In that connection, it was established by witness Walter, accepted as an expert in the field of engineering, that on January 7, 1985, the water line of Alligator Lake was at 62.4 feet mean sea level elevation and the end of the existing 32-foot wooden fence was 16 feet from the then existing waterline of the lake. If the water in the lake was at the 64 feet mean sea level elevation or "high pool" stage, which has occurred on the average of once every three years, the water at the end of the fence would still be only .9 feet in depth at the waterward extreme end of the proposed 26-foot fence. Indeed, it was established with- out contradiction by the Applicant, Melvin Thayer, that in the 17 or 18 years he has observed the project site, that only "seven or eight inches of water is the most depth he has seen at the end of the fence." Thus, the fence as proposed to be installed, will pose no impediment or hazard to the navigation of fishing boats, skiing boats or other craft, and, in that regard, a dock in close proximity to the site of the proposed fence extends approximately 90 feet waterward at the present time. In view of the Petitioner's other objection to the fence concerning their feared loss of access to walk around the near-shore area of the lake to visit friends and the like, the permit applicants have agreed to install a gate for public access anywhere specified by the Department along the extent of the proposed fence. The testimony of Petitioner's witnesses, including a representative of the Game and Fresh Water Fish Commission, consists largely of objections to the precedent of permitting a private fence to be constructed in the waters of the state and on state water bodies, but no impediment to navigation has been established especially since the neighboring dock and numerous other docks around the shoreline of the lake extend waterward much farther than will the proposed fence. No degradation to water quality has been established to result from the proposed project. The fence has not been shown to be contrary to the public interest since it will not interfere with wildlife habitat or natural resources, nor impede navigation in any way, and was shown not to impede any public use of the lake or the near-shore area of the lake, in view of the access gate to be provided in the fence. In short, reasonable assurances have been provided that all permitting criteria within the Department's jurisdiction at issue in this proceeding will be complied with, although a permit from the Department of Natural Resources authorizing use of the state lands involved has not been issued as yet.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application of Melvin and Mary Thayer for authority to remove an existing fence and to install a fence extending 26 feet waterward of the 64-foot mean sea level elevation of Alligator Lake with an attendant public access gate installed therein be GRANTED upon satisfaction of the above-stated condition. DONE and ENTERED this 15th day of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1986. COPIES FURNISHED: Virginia M. Hoover, MSM Consultant 5366 East Space Coast Parkway St. Cloud, Florida 32769 Norman J. Smith, Esquire Post Office Drawer 1549 Kissimmee, Florida 32741 B. J. Owens, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue in this case is whether the South Florida Water Management District (SFWMD, or District) should issue a Modification to Environmental Resource Permit (ERP) No. 36-00583- S-02, Application No. 050408-15 to Plantation Development, Ltd. (PDL), for construction and operation of a surface water management system serving a 78.11-acre condominium development known as Harbour Pointe at South Seas Resort, with discharge into wetlands adjacent to Pine Island Sound.
Findings Of Fact Based on the evidence and arguments, the following facts are found: The Parties PDL, the applicant, is a limited partnership which is the successor to Mariner Group, Inc. (Mariner). SFWMD has jurisdiction over PDL's application, as amended, and has given notice of its intent to grant PDL's application, as amended, with certain conditions. Petitioners, CCA and SCCF, and Intervenor, CSWF, are Florida not-for-profit corporations that challenged the proposed ERP. Development and Permit History The property subject to PDL's application was part of approximately 310-acres on the northern end of Captiva Island in Lee County, Florida. Redfish Pass is to the immediate north, separating Captiva Island from North Captiva Island. Farther to the north is Cayo Costa Island, a large island to the south of Boca Grande Pass. Most of Cayo Costa is a State Park. To the south of Captiva Island is Sanibel Island, the site of the Ding Darling National Wildlife Refuge. To the northeast of Sanibel Island and to the east of the rest of the string of barrier islands just mentioned is Pine Island Sound, which is to the west of Pine Island. Pine Island Sound is a state-designated Aquatic Preserve and Outstanding Florida Water (OFW). Pine Island Sound also is state-designated Class II water, but shell-fishing is prohibited in the immediate vicinity of Captiva Island. To the east of Pineland Island is Little Pine Island, which is surrounded by the Matlacha Pass Aquatic Preserve, which includes the Matlacha Pass National Wildlife Refuge. All of these features are part of the Charlotte Harbor National Estuary (CHNE). San Carlos Bay is farther south. The Lee County mainland is to the east of Matlacha Pass and San Carlos Bay. The 310-acre site was purchased by Mariner in 1972 for development of a resort that became known as the “South Seas Plantation.” Mariner's property included both Captiva Island proper and a smaller island immediately to the east across Bryant Bayou to the north and Chadwick Bayou farther to the south. Bryant Bayou has a narrower inlet from the north, and Chadwick Bayou has a narrower inlet to the south. Both inlets lead to Pine Island Sound. When Mariner purchased the property, it theoretically was possible to develop a maximum of 3,900 dwelling units on the 310-acre property, pursuant to Lee County zoning. In 1973, Mariner submitted an application to Lee County for the right to develop of 912 dwelling units on its 310 acres. PDL characterizes this as a "voluntary down-zoning" for the purpose of protecting the environment and unusual for a developer to do at that point in time. However, it is speculative how much more than 912 dwelling units would have been approved by Lee County at the time. The purpose of Mariner’s application to Lee County was to create a resort where recreational, single family, multi- family, and some commercial uses would coexist in a resort setting. The overall development plan was to construct the resort while conserving many of the property’s natural resources, including several miles of mangrove and Gulf of Mexico shoreline. Lee County approved the rezoning and the concept of the South Seas Plantation in 1973. Mariner's development began with Captiva Island proper and included a marina, golf course, and a variety of residential condominiums and single-family home sites. Some of the residential units were sold, and others remained in Mariner's ownership. Mariner marketed the rental of units at South Seas Plantation and served as rental agent for units not owned by Mariner. Development of the marina included dredging, and spoil was deposited on the northern tip of the smaller island, helping to create approximately 1.4 acres of upland there. In the 1950's or 1960's, a natural sand-and-shell berm along the eastern shore of the smaller island was built up and maintained by addition of fill material to create a two-track sand/shell road, which was used for vehicular access to the northern tip via an east-west road that divided the smaller island roughly in half and connected it to Captiva Island proper and the main road at South Seas Plantation. At a later point in time, the east-west portion of the road was paved for better access to a drinking water plant, a wastewater treatment plant, and a helicopter pad used by the Lee County Mosquito Control District. In 1985, Mariner received from SFWMD a “Master Stormwater Permit” for its entire development (the 1985 Permit). At that time, SFWMD did not regulate wetland impacts, only surface water management systems. The Department of Environmental Regulation regulated wetland impacts through its dredge and fill permit program, and there was no evidence relating to any dredge and fill permitting on the property. The 1985 Permit was for surface water management systems for construction in uplands on the property. No surface water management systems were needed or permitted in any wetlands. The 1985 Permit included a surface water management system for an 18-unit hotel on the spoil uplands of the northern tip of the smaller island. Permit drawings showed plans for a golf course on much of the remainder of the smaller island, which consisted mostly of wetlands. Access to the facilities was envisioned to be by water taxi, with emergency access via the utility and sand/shell road. Together, the hotel and golf course was to become a part of the resort known as Harbour Pointe. The 1985 Permit was modified several times in the years since its initial issuance, during which time Chapter 373, Florida Statutes, was amended to give SFWMD authority to regulate activities in waters and wetlands. However, until the pending application, none of the modifications had wetland impacts. In 1998, Mariner negotiated the sale of ten resort properties it owned in Florida, including South Seas Plantation, to Capstar, which later became Meristar S.S. Plantation Co., LLC (Meristar). Meristar was a real estate investment trust which specialized in hotels. Because it was not in the development business, Meristar was not interested in purchasing the as-yet undeveloped Harbour Pointe portion of South Seas Plantation, or Mariner's remaining development rights. As a result, Meristar purchased all the developed land on South Seas Plantation but not the approximately 78 acres of undeveloped land which is the subject of the pending application, or any of Mariner's development rights. Thus, after the sale of South Seas Plantation, Mariner retained its development rights and the 78 acres of undeveloped land, which are the subject of PDL's application. In 2002, Lee County issued an Administrative Interpretation which clarified that those development rights consisted of a maximum of 35 more residential units. Eleven units subsequently were built, leaving a maximum of 24 residential units when PDL filed its application in this case. The 78-acre Harbour Pointe site consists of mangrove wetlands, privately owned submerged lands, the 1.4-acre upland area at the northern tip of Harbour Pointe and another 1.4 acres of upland, which contain a Calusa Indian mound, known as the Chadwick Mound for its location west of Chadwick Bayou. While agreements between Meristar and PDL contemplate that PDL's subsequent development at Harbour Pointe would be marketed as part of the South Seas Resort and share some amenities and services, the parcels which comprise the Harbour Pointe development are the only undeveloped lands PDL owns or controls. PDL has no contractual or other legal right to develop on property owned by Meristar. Because it was modified several times since issuance, the 1985 Permit has not expired. However, Harbour Pointe never was constructed, and that part of the 1985 Permit expired in that Mariner lost its entitlement to proceed with construction. Instead, development of Harbour Pointe would require a permit modification under the new laws and rules, which included the regulation of wetland impacts. The Application and Proposed ERP In October 2003, PDL applied to SFWMD to further modify the 1985 Permit for construction of a water taxi dock for access to Harbour Pointe. After being informed by SFWMD that modifications to the 1985 Permit for development of Harbour Pointe would be reviewed under current laws and regulations, PDL withdrew the application. In April 2005 PDL applied for modification of the 1985 Permit to construct six 9,500 square-foot, four-plex condominium buildings (each two stories over parking, and accommodating units having 3,600-3,800 square feet of air-conditioned living space), a pool and spa, a tennis court, an access road, a filter marsh and surface water management facilities. Additionally, the site plan deleted all boat docks, except for a single water taxi slip and possibly a dock for launching kayaks and canoes and proposed a drawbridge across the inlet to Bryant Bayou to connect the project site to the South Seas Resort and eliminate the need for the emergency access road on the smaller island. This application described a development site of 7.4 acres, which included 4.8 acres of direct impacts to (i.e., destruction and fill of) mangroves and .1 acre of shading impacts from construction of the drawbridge. The proposed mitigation for the mangrove impacts included: restoration (by removal and replanting) of .6 acre of the north-south sand/shell road, with resulting enhancement of the adjacent preserved mangrove wetlands through improved hydrologic connection across the former shell/sand road and improved tidal connection to Pine Island Sound to the east; and preservation of the rest of PDL's property. The preserved areas would include: approximately 36 acres of mangrove wetlands adjacent to and south of the impacted wetlands (included the road to be restored) (Parcel A); 24.5 acres of mangrove wetlands south of the utility road and east of the narrow inlet to Chadwick Bayou (Parcel B); 9.3 acres of mangrove wetlands (7.9 acres) and tropical hardwoods (1.4 acres, which includes the Chadwick Mound), south of the utility road and west of the inlet to Chadwick Bayou, (Parcel C); .9 acre of mangrove wetlands to the west of Parcel C and the South Seas Resort main road (Parcel D); and .8 acre of mangrove wetlands separated from Parcel A by Bryant Bayou and adjacent to the South Seas Resort main road. A monitoring program lasting at least five years was offered to ensure success of the restoration and mitigation proposal. The application itself incorporated some reduction and elimination of wetland impacts. The total site consists of five separate tax parcels which could be developed into a number of single-family home sites. Such a development plan would have greater direct impacts than the proposed project and would require the shell/sand road to be significantly widened to meet current code requirements. By using the bridge as access, .11 acre of wetlands would be disturbed, as compared to 3.9 acres of total impact that would occur because of the widening the road. This approach results in the entire project causing less wetland impact than would occur from the use of the road alone. After the application was filed, PDL responded to two written requests for additional information and several other questions raised during meetings, phone conversations, and email exchanges with one or more SFWMD staff members. During this process, the application was amended. The tennis court was eliminated, and the filter marsh was replaced by a five dry detention ponds. In addition, the resulting development was concentrated more into the northern tip of the island to reduce and eliminate the greater secondary impacts (from more "edge effect") to the preserved wetlands to be expected from a more linear site plan. These changes reduced the footprint of the proposed project to 5.24 acres, the building size to 6,400 square feet each, the residential unit size to 2,400 to 2,600 square feet each, and wetland impacts to 2.98 acres, plus .11 acre of shading impacts from construction of the drawbridge. In addition, since the project was more concentrated at the northern tip, another tenth of an acre of the sand/shell road was to be restored. A conservation easement was offered for the 73.31 acres to be preserved, including 71.10 acres of wetlands, in Parcels A through E. PDL also offered to purchase .11 credits of offsite mitigation from the Little Pine Island Wetland Mitigation Bank (LPIWMB). On February 2, 2006, SFWMD's staff recommended approval of the amended application with 19 standard general conditions and 30 special conditions. Some of the special conditions in the Staff Report addressed prevention of erosion, shoaling, silt, turbidity, and water quality problems during construction or operation; remediation of any such problems not prevented; and restoration of any temporary wetland impacts. A pre-construction meeting was required to discuss construction methods, including construction dewatering. Although PDL indicated that dewatering would not be necessary for construction of the project, the Staff Report recommended that a dewatering plan be submitted before any dewatering occurred and noted that PDL would have to obtain all necessary Water Use authorizations, unless the work qualified for a No-Notice Short-Term Dewatering permit pursuant to Rule 40E- 20.302(3) or is exempt pursuant to Rule 40E-2.051.1 On February 8, 2006, SFWMD's Governing Board gave notice of its intent to approve the amended application with two additional conditions that were added to the Staff Report: PDL was required to apply for and receive a permit modification for the roadway necessary to access the project (i.e., the road leading from the South Seas Resort main road to the proposed drawbridge), and the applicant for the road to the drawbridge was required to document that proposed construction was consistent with the design of the master surface water management system, including land use and site grading assumptions; and a perpetual maintenance program for restored and preserved areas, including removal of exotic and nuisance vegetation in excess of five percent of total cover between regular maintenance activities, or such vegetation dominating any one section, was required to ensure integrity and viability. The parties interpreted the first of the two additional conditions to mean that construction access to build the project would be via the new roadway and drawbridge. On May 30, 2006, to address certain issues raised by the pending challenge to SFWMD's intended action, PDL further amended the application to substitute two wet retention ponds and three dry retention ponds for the five dry detention ponds and to make associated minor changes to the proposed surface water management system's water quality treatment methods to further reduce water quality impacts from the discharge of the system into the adjacent preserved wetlands. In addition, in view of disagreements among the parties as to the ability of PDL's onsite mitigation proposal to offset wetland impacts, PDL offered to increase offsite mitigation by purchasing as many additional credits from the LPIWMB as necessary to completely offset wetland impacts, as determined by the Uniform Mitigation Assessment Methodology (UMAM). Water Quantity Impacts Pursuant to Rule 40E-4.301(1), an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on- site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities. Section 6.0 of the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District (BOR), entitled Water Quantity Criteria, outlines the criteria that the applicant must meet for water quality at the project site. As outlined in BOR Section 6.2, the off-site discharge is limited to rates not causing adverse impacts to existing off- site properties. The proposed surface water management system consists of a series of swales, dry retention, and then a wet retention system with an outfall into the areas to the south. Ordinarily, stormwater runoff eventually will be absorbed into the ground. Any discharge associated with the system, typically only in conjunction with major rain events, will flow into a preserved wetland that will be hydrologically connected to Bryant Bayou and Pine Island Sound. As outlined in BOR Section 6.2, the off-site discharge rate is limited to historic discharge rates. As required by BOR Section 6.3, a storm event of 3-day duration and 25-year return frequency is used in computing off- site discharge rates. As required by BOR Section 6.4, building floors must be at or above the 100-year flood elevations. PDL conducted a hydrologic analysis of the existing condition of the property, analyzed the runoff patterns that would result during the 25-year rainfall event and then compared the development plan hydrologic analysis to the existing condition. The conclusion was that the development plan would not adversely affect offsite area. PDL analyzed a series of storm conditions for the protection of road elevations and the protection of finished floors. There are no off-site areas that contribute to runoff through this piece of property. The proposed system will not cause adverse water quantity impacts to waters and adjacent lands, flooding to onsite or offsite properties, or adversely impact existing surface water storage and conveyance capabilities. Water Quality Impacts Rule 40E-4.301(1)(e) requires an applicant to provide reasonable assurances that the proposed project will not adversely affect the quality of receiving waters so that State water quality standards will not be violated. BOR Section 5.0 is entitled Water Quality Criteria. BOR Section 5.1 states that projects shall be designed and operated so that offsite discharges will meet State water quality standards. BOR Section 5.2.1 requires that either retention or detention, or both retention and detention be provided in the overall system in one of the following three ways or equivalent combinations thereof: Wet detention volume shall be provided for the first inch of runoff from the developed project, or the total runoff of 2.5 inches times the percentage of imperviousness, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. Retention volume shall be provided equal to 50 percent of the above amounts computed for wet detention. Retention volume included in flood protection calculations requires a guarantee of long term operation and maintenance of system bleed-down ability. BOR Section 5.9 states that all new drainage projects will be evaluated based on the ability of the system to prevent degradation of receiving water and the ability to conform to State water quality standards. In the design of the system, PDL proposed a series of best management practices. The first is to treat runoff through grassed swale areas adjacent to buildings and some of the internal roadways. From there, the water would discharge through a series of dry retention areas where there would be further removal and treatment. The water would discharge through a proposed wet retention area prior to outfall under more significant rainfall events, southward into the preserved wetland area. Because of the hydrological connection from there to Bryant Bayou and Pine Island Sound, a more detailed evaluation was conducted. PDL's detailed evaluation included source control measures. The first one is a construction pollution prevention plan. PDL also proposed an urban storm water management plan. PDL is going to provide guidance to property owners about pesticide and fertilizer management control. The Applicant also submitted a street-sweeping proposal. The design of the system incorporates an additional 50 percent water quality treatment volume, over and above the requirements of the BOR. The wet retention system, located to the north of the proposed outfall structure, incorporates submerged aquatic vegetation. That is not a requirement of the District. It is an extra measure that will remove additional levels of pollutants prior to outfall. PDL proposed an urban stormwater management plan. The plan requires annual inspection of the water management facilities, and it must be documented that the system is functioning as originally designed and built. The stormwater management system is capable, based on generally accepted engineering and scientific principles, of functioning as proposed. The stormwater management system satisfies the District's water quality criteria. Petitioners and Intervenor criticized the method used by PDL's water quality consultant, Dr. Harvey Harper, for projecting and evaluating water quality impacts to be expected from PDL's stormwater management design. They contended that the so-called "Harper method" has been criticized by other experts, none of whom testified. Dr. Harper ably defended himself against the criticism leveled at him. He testified that most if not all of the components he has incorporated into his evaluation method are not new but rather have been accepted and used by experts in his field for years. He also explained that he refined his evaluation method in response to some early criticism and that the method he used in this case has been peer-reviewed and accepted by the Department of Environmental Protection for evaluation of stormwater design criteria. While some of the assumptions incorporated in his evaluation method are simple averages of a relatively small samples, and sometimes averages of averages, Dr. Harper was confident in the ability of his method to accurately evaluate the expected water quality impacts from PDL's system. While there is potential for error in any projection, Dr. Harper's evaluation provided reasonable assurances that utilization of PDL's proposed stormwater management and treatment method will not result in violation of any State water quality standards or significantly degrade the water quality of Bryant Bayou or Pine Island Sound. Value of Wetland and Surface Water Functions In general, as part of the CHNE, the mangrove wetlands to be impacted by the proposed ERP are very important. The CHNE Coast Conservation Management Plan identifies three major threats to the estuary and local ecosystem: fish and wildlife habitat loss; water quality degradation; and hydrological alteration. The plan calls for the preservation of mangroves within the CHNE. A wide array of wildlife uses the habitat in the vicinity of the mangrove wetlands to be impacted. The site is in an important coastal fly-way for migratory birds, including numerous species of waterfowl and songbirds that migrate across the Caribbean and Gulf of Mexico to and from South and Central America. The project area also provides habitat for several listed wildlife species, including the American crocodile, wood stork, and West Indian manatee. The mangrove wetlands that will be impacted directly and indirectly by the proposed ERP are in relatively good condition and are very important due primarily to their location near Redfish Pass at the northern end of Captiva Island and to their relationship to the rest of the relatively large area of contiguous and relatively undisturbed wetlands in Parcels A through E. These attributes make them especially important as a nursery ground for several valuable fish species. Existing impacts attributable to the spoil and other disturbances in the adjacent uplands, the northernmost extent of the sand/shell road, and the South Seas Plantation/Resort development to the west across the inlet to Bryant Bayou keep these impacted wetlands from being of the very highest quality. Clearly, and obviously, the project will destroy and fill 2.98 acres of these wetlands. Indirect (secondary) impacts to the adjacent preserved wetlands will result from alteration of hydrology of the 2.98 acres of directly impacted wetlands. Instead of sheet-flowing across the uplands on the northern tip of Harbour Pointe into those wetlands, surface water on the 5.24- acre development project will be directed into a series of swales, to the dry retention ponds, and to the wet retention ponds with an outfall to the adjacent preserved wetlands to the south. Secondary impacts from the Harbour Pointe project will be similar to the existing secondary impacts to the 2.98 acres attributable to the adjacent spoil and the South Seas Plantation/Resort development, if not somewhat greater due to the absence of any buffer like the inlet. On the other hand, PDL's mitigation proposal will restore .7 acre of wetlands where the northern end of the north- south sand/shell road now exists. Eventually, the restored wetland would be expected to become an extension of the existing, adjacent red and basin black mangrove forest. In addition, the resulting improved hydrologic connection to Pine Island Sound will enhance the value of functions in the preserved wetlands, including possibly expanding the existing fish nursery and making it accessible to fish larvae and juvenile fish entering from the east as well as from the west via Bryant Bayou. There was much debate during the hearing as to whether the sand/shell road is natural or man-made and whether it is reducing what otherwise would be the natural tidal and hydrologic connection between the wetlands to the west of the road and Pine Island Sound. As indicated, a prior owner added fill material to the natural sand and shell berm in the 1950's and 1960's to create better vehicular access. See Finding 9, supra. The evidence was reasonably persuasive that those man-made changes have altered hydrology and tidal connection to some extent and that the restoration project will enhance the value and functions of the preserved wetlands to some extent. Impacts to the value of wetland and surface water functions, and corresponding mitigation for impacts, are required to be assessed using UMAM. See Fla. Admin. Code R. 62-345.100. While the mitigation assessment method might be uniform, its application and results are not. Three different experts used UMAM with differing results. SFWMD's expert, Mr. Cronyn, and PDL's consultants, Kevin L. Erwin Consulting Ecologist, Inc. (KLECE), conferred after their initial assessments, resulting in changed results by both (as well as correction of errors in initial scoring by Mr. Cronyn.) Dave Ceilley, an expert for Petitioners and Intervenor, scored the 2.98 acre impact area significantly higher in its current state than the final score of either Mr. Cronyn or KLECE, resulting in a higher functional loss from its destruction and filling. He also gave no credit for restoration of the sand/shell road, in contrast to KLECE and Mr. Cronyn, and scored PDL's mitigation proposal as it affected 36.6 acres of preserved wetlands (essentially, Parcel A) as a functional loss instead of a functional gain, as scored by KLECE and Mr. Cronyn. Mr. Ceilley also scored PDL's mitigation proposal as it affected 24.5 acres of preserved wetlands (Parcel B) as a functional loss instead of a functional gain, as scored by KLECE and Mr. Cronyn. Finally, he gave no credit for preservation of Parcels A through E via a conservation easement because he was under the mistaken impression that the land already was under a conservation easement in favor of Lee County. (Actually, PDL had agreed to preserve 65 acres of mangrove forest in return for the right to develop Harbour Pointe, although a conservation easement actually was imposed on only about six acres. Although not identified, the 65 acres probably would have included the preserved wetlands in the proposed ERP.) Mr. Cronyn gave credit for preservation of Parcels B through E. KLECE did not claim credit, because KLECE did not think it was necessary, but KLECE accepts Mr. Cronyn's assessment of those parcels. Mr. Ceilley's recent onsite field work was extremely limited, and much of his assessment was based general knowledge of the area and dated (14-year old) onsite field work. In addition, this was the first "real-life" UMAM assessment performed by Mr. Ceilley. His only other use of UMAM was for practice in training. Finally, his assessment was entirely independent without the input of any other consultants to aid him. In contrast, both KLECE and Mr. Cronyn had extensive prior experience using UMAM. In addition, KLECE functioned as a three- man team in performing its UMAM assessments and talked out any initial discrepancies and disagreements (albeit with Mr. Erwin being the final arbiter). KLECE and Mr. Cronyn also consulted with one another, as well as experts in other related fields before finalizing their respective UMAM assessments. KLECE was able to draw on field work conducted during over 200 man-hours onsite in recent years. While KLECE was the retained consultant and agent for the applicant in this case, Mr. Ceilley conceded that Mr. Erwin adheres to high ethical standards. Petitioners and Intervenor were critical of credit given in the UMAM assessments performed by Mr. Cronyn for preservation of Parcels B through E. (KLECE did not claim credit for their preservation in its UMAM assessment.) Petitioners and Intervenor contend that PDL already has agreed to preserve the wetlands in those parcels in return for the ability to utilize the remaining 24 residential units of development rights at Harbour Pointe and that development of the Chadwick Mound is unlikely. Actually, as found, PDL's agreement with the County only specified six of the 65 acres of wetlands to be preserved. Besides, the preserved wetlands in the proposed ERP would implement the agreement with the County. As for the Chadwick Mound, preservation without the proposed ERP is not a certainty, although residential development there would be difficult now that its existence is common knowledge. In any event, the relative unlikelihood of development in Parcels A through E, especially after development of 24 units at Harbour Pointe, was taken into consideration by Mr. Cronyn in determining the amount of credit to be given for their preservation. Taking all the evidence into account, Mr. Cronyn's UMAM assessment of the value of wetland functions with and without the proposed ERP are accepted. According to his assessment, the proposed ERP will result in a functional loss of .34 functional units, meaning an equivalent amount of mitigation credit would have to be purchased from the LPIWMB to offset wetland impacts. Based on the functional assessment used to permit that mitigation bank, approximately an additional .9 of a mitigation bank credit would be needed, in addition to the .11 already offered. The evidence as to cumulative impacts did not clearly define the pertinent drainage basin. Logically, the pertinent drainage basin either would encompass all land draining to surface waters connected to Pine Island Sound, which would include Little Pine Island, or would be limited to the land that is subject to the proposed ERP. If the former, all offsetting mitigation would be within the same drainage basin. If the latter, there would be no cumulative impacts, since the proposed ERP would complete all development. Reduction and Elimination of Wetland Impacts According to BOR Section 4.2.1.1, if a proposed surface water management system will result in adverse impacts to wetland or other surface water functions such that it does not meet the requirements of Sections 4.2.2 through 4.2.3.7, the District must consider whether the applicant has implemented practicable design modifications to reduce or eliminate such adverse impacts. The term "modification" does not mean not implementing the system in some form, or requiring a project that is significantly different in type or function, such as a commercial project instead of a residential project. Elimination and reduction also does not require an applicant to suffer extreme and disproportionate hardship--for example, having to construct a ten mile-long bridge to avoid half an acre of wetland impacts. However, Anita Bain, SFWMD's director of ERP regulation, agreed that, in interpreting and applying BOR Section 4.2.1.1, "the more important a wetland is the greater extent you would require elimination and reduction of impact." As reflected in Findings 17-19, supra, PDL explored several design modifications in order to reduce and eliminate impacts to wetland and other surface water functions. However, several options for further reducing and eliminating wetland impacts were declined. PDL declined to eliminate the swimming pool and move one or more buildings to the pool's location at the extreme northern tip of Harbour Pointe because that would not be a practicable means of reducing the Harbour Pointe footprint. First, the undisputed testimony was that a residential building could not be sited as close to the water's edge as a swimming pool could. Second, because it would block the view from some of Meristar's residential properties, and Meristar has the legal right to approve or disapprove PDL's development on Harbour Pointe. PDL declined to reduce the number of buildings because, without also reducing the number and/or size of the residential units, reducing the number of buildings would make it difficult if not impossible to accommodate all cul-de-sacs required by Lee County for use by emergency vehicles and meet parking needs beneath the buildings, as proposed. (In addition, it would reduce the number of prime corner residential units, which are more marketable and profitable.) PDL declined to further reduce unit size because a further reduction to 2,000 square feet would only reduce the footprint of the six proposed buildings by a total of 5,000 square feet--less than a ninth of an acre. Reducing unit size to much less than 2,000 square feet would make it difficult if not impossible to market the condos as "luxury" units, which is what PDL says "the market" is demanding at this time (and also what PDL would prefer, since it would maximize PDL's profits for the units.) But it was not proven that smaller condos could not be sold at a reasonable profit. PDL declined to reduce the number of condo units at Harbour Pointe (while maintaining the conservation easement on the remainder of PDL's acreage, which would not allow PDL to develop all of the 24 dwelling units it wants to develop and is entitled to develop on its 78 acres, according to Lee County). However, it was not proven that such an option for further reducing and eliminating wetland impacts would not be technically feasible, would endanger lives or property, or would not be economically viable. With respect to economic viability, SFWMD generally does not examine financial statements or profit-and-loss pro formas as part of an analysis of a site plan's economic viability. This type of information is rarely provided by an applicant, and SFWMD does not ask for it. As usual, SFWMD's reduction and elimination analysis in this case was conducted without the benefit of such information. Rather, when PDL represented that any reduction in the number of units would not be economically viable, SFWMD accepted the representation, judging that PDL had done enough elimination and reduction based on the amount of wetland impacts compared to the amount of wetlands preserved, in comparison with other projects SFWMD has evaluated. As Ms. Bain understands it, "it's almost like we know it when we see it; in that, you wouldn't ask an applicant to build a ten-mile bridge to avoid a half an acre wetland impact, so something that's so extreme that's obvious, rather than how much profit would a particular applicant make on a particular project." Although SFWMD did not inquire further into the economic viability of modifications to reduce and eliminate wetland and surface water impacts, Petitioners and Intervenor raised the issue and discovered some profit-and-loss pro formas that were presented and addressed during the hearing. A pro forma prepared in August 2003 projected a profit of $2.79 million for the first 8 of 12 units and an additional $1.72 million profit on the next four units (taking into account construction of a drawbridge and road to the west at a cost of $1.8 million). This would result in a total profit of $4.51 million, less $800,000 for a reserve to pay for maintenance of the drawbridge (which PDL said was required under timeshare laws). Another pro forma prepared in February 2004 projected profits of $11.99 million on 16 "big-sized" units (3,000 square feet), $11.81 million on 20 "mid-sized" units (2,200 square feet), and $13.43 million on 24 "mixed-size" units (16 "mid- sized" and 8 "small-sized" at 1,850 square feet), all taking into account the construction of the drawbridge and road at a cost of $1.8 million. After production of the earlier pro formas during discovery in this case, PDL prepared a pro forma on June 7, 2006. The 2006 pro forma projected net profit to be $4.9 million, before investment in the property. However, PFL did not make its investment in the property part of the evidence in the case. In addition, Petitioners and Intervenor questioned the validity of the 2006 pro forma. PDL answered some of the questions better than others. To arrive at the projected net profit, PDL projected significantly (33%) higher construction costs overall. The cost of the drawbridge and road to the west was projected to increase from $1.8 million to $2.5 million. Based on its experience, PDL attributed the increase in part to the effect of rebuilding activity after Hurricane Charlie and in part to the effect of Sanibel Causeway construction (both increased overweight charges and limitations on when construction vehicles could cross the causeway, resulting construction work having to be done at night, at a significantly higher cost). At the hearing, PDL did not present any up-to-date market surveys or other supporting information on construction costs, and the Sanibel Causeway construction is expected to be completed before construction on the Harbour Pointe project would begin. In addition, without a full enough explanation, PDL replaced the bridge operation and maintenance reserve of $800,000 with an unspecified bridge reserve fund of $2 million. On the revenue side of the 2006 pro forma, gross sales of $1.9 million per unit were projected, which is less than PDL was projecting per square foot in February 2004, despite the assumed increased construction costs. PDL also attributes this to the effects of Hurricane Charlie. Again, there were no market surveys or other information to support the pricing assumptions. Besides predicting lower price potential, the 2006 pro forma deducts a pricing contingency of $2.3 million. PDL did not calculate or present evidence on whether it could make a profit building and selling 16 or 20 units, thereby eliminating a building or two (and perhaps some road and stormwater facility requirements) from the project's footprint. The absence of that kind of evidence, combined with the unanswered questions about the 2006 pro forma for the maximum number of units PDL possibly can build, constituted a failure to give reasonable assurance that wetland and surface water impacts would be reduced and eliminated by design modifications to the extent practicable, especially given the very high importance of the wetlands being impacted. Public Interest Test An ERP applicant who proposes to construct a system located in, on, or over wetlands or other surface waters must provide reasonable assurances that the project will “not be contrary to the public interest, or if such an activity significantly degrades or is within an Outstanding Florida Water, that the activity will be clearly in the public interest.” § 373.414(1)(a), Fla. Stat.; Rule 40E-4.302(1)(a); and SFWMD BOR Section 4.2.3. This is known as the “Public Interest Test,” and is determined by balancing seven criteria, which need not be weighted equally. See Lott v. City of Deltona and SJRWMD, DOAH Case Nos. 05-3662 and 05-3664, 2006 Fla. Div. Adm. Hear. LEXIS 106 (DOAH 2006). The Public Interest criteria are as follows: Whether the activity will adversely affect the public health, safety or welfare or the property of others. There are no property owners adjacent to the site, and the closest property owners to the site are located across the inlet which connects Bryant Bayou to Pine Island Sound. While mangrove wetlands generally provide maximum protection from hurricanes, it does not appear from the evidence that existing conditions would provide appreciably more protection that the conditions contemplated by the proposed ERP. Otherwise, the project would not adversely affect the public health, safety or welfare, or property of others. Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The proposed ERP would impact (fill and destroy) 2.98 acres of very important, high quality mangrove wetlands. Even with the restoration or creation of .7 acre of probable former wetlands and improvements in the hydrologic connection of the 36.5-acre preserved wetland (Parcel A) to Pine Island Sound, the proposed ERP probably will have a negative effect on the conservation of fish and wildlife, including listed species. However, the negative effect would not be considered "adverse" if the elimination and reduction requirements of BOR 4.2.1.1 are met. Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The proposed drawbridge will be constructed over the inlet connecting Bryant Bayou with Pine Island Sound, a distance of approximately 65 feet. Boaters use the inlet for navigation. However, by its nature, a drawbridge allows for and not adversely affect navigation. The proposed ERP does not contain specifics on operation of the drawbridge, but PDL's consultant, Mr. Erwin, testified that there would be no adverse effect on navigation, assuming that the bridge would remain in the open position between use for crossings by road. The drawbridge would not adversely affect the flow of water or cause harmful erosion or shoaling. Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. The question whether the proposed ERP will adversely affect fishing or recreational values is informed by both the UMAM functional assessment and the reduction and elimination analysis. If impacts to wetlands and surface waters are reduced and eliminated, and offset by mitigation, there should be no significant adverse effects on fishing and recreational values. Whether the activity will be of a temporary or permanent nature. The proposed development is permanent in nature. vi. Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, Florida Statutes. There are no significant archaeological resources on the Harbour Pointe project site. Although shell scatter left by the Calusa Indians has been found on Parcel A, they have been evaluated in the permit application process by Corbett Torrence, an archeologist, and found to be of limited historical or archaeological value. The reduced scope of the project avoids most of these areas. The proposed ERP will, however, enhance significant archaeological resources by placing a conservation easement on Parcel C, which is the site of the Chadwick Mound, one of the largest Calusa Indian mounds in Lee County. Further studies of this site could lead to a much better understanding of the Calusa culture. This Indian mound is a very valuable historical treasure, and its protection through inclusion in a conservation easement is very much in the public interest. vii. The current condition and relative value of functions being performed by areas affected by the proposed activity. This subject also was considered in the reduction and elimination analysis and in the UMAM functional assessment. As in the Findings the current condition and relative value of the functions being performed by the areas affected by the proposed activity are very valuable. That is why the reduction and elimination analysis is particularly important in this case. Assuming appropriate reduction and elimination, mitigation according to the UMAM assessment can offset unavoidable impacts to the functions performed by the areas affected by the proposed activity. Standing of CCA, SCCF, and CSWF CCA, SCCF, and CSWF each has at least 25 current members residing within Lee County and was formed at least one year prior to the date of the filing of PDL's application. CCA's mission statement includes protection of "our residents' safety, the island ecology, and the unique island ambience . . . ." CCA also is dedicated to "preserving and expanding, where possible, the amount of native vegetation on Captive Island" and preservation of natural resources and wildlife habitat on and around Sanibel and Captiva Islands. SCCF's mission is the preservation of natural resources and wildlife habitat on and around Sanibel and Captiva. It manages just over 1,800 acres of preserved lands, including mangrove forest habitat similar to that being proposed for development by PDL. Management activities involve invasive non- native plant control, surface water management, prescribed burning, native plant habitat restoration and wildlife monitoring. CSWF's purpose is to sustain and protect the natural environment of Southwest Florida through policy advocacy, research, land acquisition and other lawful means. Its four core programs are: environmental education; scientific research; wildlife rehabilitation; and environmental policy. Of CCA's 464 members, approximately 115 live within the boundaries of South Seas Plantation/Resort. Approximately 277 of SCCF's 3,156 members live on Captiva Island, and 40 live within the boundaries of South Seas Plantation/Resort. The members of CCA and SCCF who own property on Captiva Island rely on the mangrove systems for protection from storms. A substantial number of the Captiva Island residents and the other members of CCA and SCCF engage in recreational activities in the vicinity of PDL's property, including boating, fishing, bird-watching, wildlife observation, and nature study that would be adversely affected by significant water quality and wetland impacts from the proposed ERP. CSWF has 5,600 family memberships, approximately 400 in Lee County, and 14 on Sanibel. No members live on Captiva Island. There was no evidence as to how many of CSWF's members use the natural resources in the vicinity of the proposed ERP for recreational purposes or otherwise would be affected if there are water quality and wetland impacts from the proposed ERP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the proposed ERP be denied; however, if wetland and surface water impacts are reduced and eliminated to the extent practicable, the proposed ERP should be issued with the additional conditions, as represented by PDL's witnesses: that the proposed drawbridge be left drawn except when in use for road access; that construction access be via the proposed drawbridge only; and that there be no construction dewatering. DONE AND ENTERED this 8th day of November, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th of November, 2006.
The Issue The issue to be determined is whether Respondent Land Trust #97-12 (“Land Trust”) is entitled to an Environmental Resource Permit (“ERP”) for its proposed project on Perico Island in Bradenton, Florida.
Findings Of Fact The Parties Petitioner Joseph McClash is a resident of Bradenton, Florida, who uses the waters in the vicinity of the project for fishing, crabbing, boating, and wildlife observation. Petitioner Manasota-88, Inc., is an active Florida nonprofit corporation for more than 20 years. Manasota-88 has approximately 530 members, most of whom (approximately 300) reside in Manatee County. The mission and goal of Manasota-88 includes the protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Petitioner FISH is an active Florida nonprofit corporation in existence since 1991. FISH owns real property in unincorporated Cortez in Manatee County and maintains a Manatee County mailing address. FISH has more than 190 members and more than 150 of them own property or reside in Manatee County. The mission and goal of FISH includes protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Intervenor Suncoast Waterkeeper, Inc., is an active Florida nonprofit corporation in existence since 2012. The mission of Suncoast Waterkeeper is “to protect and restore the Suncoast’s waterways through enforcement, fieldwork, advocacy, and environmental education for the benefit of the communities that rely upon coastal resources.” Suncoast Waterkeeper provided the names and addresses of 25 members residing in Manatee County. A substantial number of the members of Suncoast Waterkeeper use the area and waters near the proposed activity for nature-based activities, including nature observation, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Intervenor Sierra Club, Inc., is a national organization that is a California corporation registered as a foreign nonprofit corporation in Florida. Sierra Club has been permitted to conduct business in Florida since 1982. The mission of Sierra Club includes protection of the natural resources of Manatee County, which include Anna Maria Sound and Perico Island. Sierra Club provided the names and addresses of 26 members who live in Manatee County. A substantial number of the members of Sierra Club use the area and waters near the proposed project for nature-based activities, including observing native flora and fauna, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Respondent Land Trust is the applicant for the challenged ERP and owns the property on which the proposed project would be constructed. Respondent District is an independent special district of the State of Florida created, granted powers, and assigned duties under chapter 373, Florida Statutes, including the regulation of activities in surface waters. The proposed project is within the boundaries of the District. The Project Site The project site is 3.46 acres of a 40.36-acre parcel owned by Land Trust. The parcel includes uplands, wetlands, and submerged lands, on or seaward of Perico Island, next to Anna Maria Sound, which is part of Lower Tampa Bay. Anna Maria Sound is an Outstanding Florida Water. The project site is adjacent to a large multi-family residential development called Harbour Isles, which is currently under construction. Access to the Land Trust property is gained through this development. The Land Trust parcel contains approximately seven acres of high quality mangroves along the shoreline of Anna Maria Sound. They are mostly black and red mangroves, with some white mangroves. The mangroves on the project site amount to a total of 1.9 acres. Mangroves have high biological productivity and are important to estuarine food webs. Mangroves provide nesting, roosting, foraging, and nursery functions for many species of wildlife. Mangroves also provide a buffer from storm surge and help to stabilize shorelines. Wildlife species found on the project site include ibises, pelicans, egrets, spoonbills, mangrove cuckoos, bay scallops, fiddler crabs, mangrove tree crabs, horseshoe crabs, marsh rabbits, raccoons, mangrove bees, and a variety of fish. No endangered species have been observed on the project site, but mangroves are used by a number of listed species. The Proposed Project The proposed project is to construct a retaining wall, place fill behind the wall to create buildable lots for four single-family homes, construct an access driveway, and install a stormwater management facility. The stormwater management facility is a “Stormtech” system, which is an underground system usually used in situations where there is insufficient area to accommodate a stormwater pond. Riprap would be placed on the waterward side of the retaining wall. The retaining wall would be more than 35 feet landward of the mean high water line in most areas. Petitioners contend the proposed retaining wall is a vertical seawall, which is not allowed in an estuary pursuant to section 373.414(5). “Vertical seawall” is defined in section 2.0(a)(111), Volume I, of the Environmental Resource Permit Applicant’s Handbook (“Applicants Handbook”) as a seawall which is steeper than 75 degrees to the horizontal. It further states, “A seawall with sloping riprap covering the waterward face to the mean high water line shall not be considered a vertical seawall.” The retaining wall is vertical, but it would have riprap covering its waterward face and installed at a slope of 70 degrees. The retaining wall is not a vertical seawall under the District’s definition. Stormwater Management Stormwater in excess of the Stormtech system’s design capacity would discharge into Anna Maria Sound. Because Anna Maria Sound is an Outstanding Florida Water, District design criteria require that an additional 50 percent of treatment volume be provided. The Stormtech system meets the District’s design criteria for managing water quality and water quantity. Projects which meet the District’s design criteria are presumed to provide reasonable assurance of compliance with state water quality standards. Petitioners’ evidence was not sufficient to rebut this presumption. Petitioners contend the District waiver of water quality certification for the proposed project means that Land Trust was not required to meet water quality standards. However, that was a misunderstanding of the certification process. All state water quality criteria are applicable. Petitioners contend water quality monitoring should be imposed for this project. However, section 4.7 of the Applicant’s Handbook, Volume II, provides that if the applicant meets the District’s design criteria, water quality monitoring is not required. Petitioners failed to prove the proposed stormwater management system cannot be constructed, operated, or maintained in compliance with applicable criteria. Wetland Impacts In order to create buildable lots, 1.05 acres of the 1.9 acres of mangroves on the project site would be removed and replaced with fill. A swath of mangroves approximately 40 feet wide would remain waterward of the retaining wall. The proposed direct and secondary impacts to the functions provided by wetlands were evaluated using the Uniform Mitigation Assessment Method (“UMAM”) as required by Florida Administrative Code Chapter 62-345. UMAM is used to quantify the loss of functions performed by wetlands considering: current condition, hydrologic connection, uniqueness, location, fish and wildlife utilization, time lag, and mitigation risk. The District determined the filling of 1.05 acres of wetlands would result in a functional loss of 0.81 units and the secondary impacts resulting from installation of the retaining wall would result in a loss of 0.09 units for a total functional loss of 0.9 units. Petitioners contend the functional loss would be greater. Petitioners contend the wetland delineation performed by Land Trust and confirmed by the District did not extend as far landward as the hydric soils and, therefore, the total acreage of affected wetlands would be greater. However, Petitioners did not produce a wetland delineation for the project site, and their evidence was not sufficient to rebut Land Trust's prima facie evidence on this issue. Petitioners’ experts believe the secondary impacts caused by the proposed project would be greater than calculated, including fragmentation of the shoreline mangrove system, damage to the roots of mangroves near the retaining wall, and scouring effects caused by wave action associated with the retaining wall. Respondents assert that the analysis by Petitioners’ expert Jacqueline Cook relied on federal methodology and that “the science used in her analysis is not contained in the state or district rule criteria.” Reliance on science is always appropriate. However, Ms. Cook’s use of a federal impact assessment methodology creates doubt about whether her scoring is consistent with UMAM. Despite the unreliability of Ms. Cook’s UMAM score, it is found that Respondents’ UMAM score under-calculated secondary impacts due to scour and other effects of changed water movement that would be caused by the retaining wall. It was not explained how the loss of storm buffering and erosion prevention functions of wetlands are accounted for in the UMAM score. Elimination or Reduction of Impacts Section 10.2.1 of the Applicant’s Handbook, Volume I, states that in reviewing a project the District is to consider practicable design modifications to eliminate or reduce impacts to wetland functions. Section 10.2.1.1 explains: The term “modification” shall not be construed as including the alternative of not implementing the activity in some form, nor shall it be construed as requiring a project that is significantly different in type or function. A proposed modification that is not technically capable of being completed, is not economically viable, or that adversely affects public safety through the endangerment of lives or property is not considered “practicable.” A proposed modification need not remove all economic value of the property in order to be considered not “practicable.” Conversely, a modification need not provide the highest and best use of the property to be “practicable.” In determining whether a proposed modification is practicable, consideration shall also be given to cost of the modification compared to the environmental benefit it achieves. Land Trust originally proposed constructing a surface water retention pond. The Stormtech stormwater management system would cause less wetland impact than a retention pond. Land Trust contends the use of a retaining wall reduces wetland impacts because, otherwise, more mangroves would have to be removed to account for the slope of the waterward side of the fill area. However, this proposition assumes the appropriateness of the size of the fill area. Land Trust also contends wetland impacts are reduced by using the adjacent development to access the proposed project site, rather than creating a new road. However, the evidence did not establish that Land Trust had a practicable and preferred alternative for access. Unlike the Stormtech system, the retaining wall and access driveway were not shown to be project modifications. The proposed project would cause fewer impacts to wetlands if the fill area was reduced in size, which was not shown to be impracticable. Reducing the size of the fill area would not cause the project to be significantly different in type or function. Land Trust did not demonstrate that it implemented reasonable design modifications to eliminate or reduce impacts to wetland functions. Mitigation Land Trust proposes to purchase credits from the Tampa Bay Mitigation Bank, which is 17 miles north of the proposed project site. The Tampa Bay Mitigation Bank is in the Tampa Bay Drainage Basin. The project site is in the South Coastal Drainage Basin. Pursuant to section 10.2.8 of the Applicant’s Handbook, Volume I, if an applicant mitigates adverse impacts within the same drainage basin, the agency will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. However, if the applicant proposes to mitigate impacts in another drainage basin, factors such as “connectivity of waters, hydrology, habitat range of affected species, and water quality” will be considered to determine whether the impacts are fully offset. The parties disputed whether there was connectivity between the waters near the project site and the waters at the Tampa Bay Mitigation Bank. The more persuasive evidence shows there is connectivity. There was also a dispute about the habitat range of affected species. The evidence establishes that the species found in the mangroves at the project site are also found at the mitigation bank. However, local fish and wildlife, and local biological productivity would be diminished by the proposed project. This diminution affects Petitioners’ substantial interests. The loss or reduction of storm buffering and erosion prevention functions performed by the mangroves at Perico Island cannot be mitigated for at the Tampa Bay Mitigation Bank. Cumulative impacts are unacceptable when the proposed activity, considered in conjunction with past, present, and future activities would result in a violation of state water quality standards, or significant adverse impacts to functions of wetlands or other surface waters. See § 10.2.8.1, Applicant’s Handbook, Vol. I. Section 10.2.8(b) provides that, in considering the cumulative impacts associated with a project, the District is to consider other activities which reasonably may be expected to be located within wetlands or other surface waters in the same drainage basin, based upon the local government’s comprehensive plan. Land Trust did not make a prima facie showing on this point. Land Trust could propose a similar project on another part of its property on Perico Island. Anyone owning property in the area which is designated for residential use under the City of Bradenton’s comprehensive plan and bounded by wetlands could apply to enlarge the buildable portion of the property by removing the wetlands and filling behind a retaining wall. When considering future wetland impacts in the basin which are likely to result from similar future activities, the cumulative impacts of the proposed project would result in significant adverse impacts to wetland functions in the area. Public Interest For projects located in, on, or over wetlands or other surface waters, an applicant must provide reasonable assurance that the project will not be contrary to the public interest, or if such activities significantly degrade or are within an Outstanding Florida Water, are clearly in the public interest, as determined by balancing the criteria set forth in rule 62- 330.302(1)(a), and as set forth in sections 10.2.3 through of the Applicant’s Handbook. Rule 62-330.302, which is identical to section 373.414, Florida Statutes, lists the following seven public interest balancing factors to be considered: Whether the activities will adversely affect the public health, safety, or welfare or the property of others; Whether the activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activities will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activities will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activities will be of a temporary or permanent nature; Whether the activities will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and The current condition and relative value of functions being performed by areas affected by the proposed regulated activity. The Parties stipulated that the proposed project would not have an adverse impact on public health, navigation, historical resources, archeological resources, or social costs. Land Trust proposes to give $5,000 to the City of Palmetto for an informational kiosk at the City of Palmetto’s public boat ramp. A District employee testified that this contribution made the project clearly in the public interest. Reasonable assurances were not provided that the proposed project is clearly in the public interest because of the adverse cumulative effects on the conservation of fish and wildlife, fishing and recreational values, and marine productivity of Anna Maria Sound, an Outstanding Florida Water.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth above, it is RECOMMENDED that the Southwest Florida Water Management District issue a final order that denies the Environmental Resource Permit. DONE AND ENTERED this 25th day of June, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2015. COPIES FURNISHED: Christian Thomas Van Hise, Esquire Abel Band, Chartered Post Office Box 49948 Sarasota, Florida 34230-6948 (eServed) Martha A. Moore, Esquire Southwest Florida Water Management District 7601 Highway 301 North Tampa, Florida 33637 (eServed) Douglas P. Manson, Esquire MansonBolves, P.A. 1101 West Swann Avenue Tampa, Florida 33606 (eServed) Joseph McClash 711 89th Street Northwest Bradenton, Florida 34209 (eServed) Ralf G. Brookes, Esquire Ralf Brookes Attorney 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904 (eServed) Justin Bloom, Esquire Post Office Box 1028 Sarasota, Florida 34230 (eServed) Robert Beltram, P.E., Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899
The Issue The issues are whether Respondent Centex Homes is entitled to the issuance of an environmental resource permit to construct a 2665 square-foot boat dock and authorization of a lease of 7807 square feet of sovereign submerged land in the portion of the Intracoastal Waterway known as Lake Worth Lagoon in Palm Beach County.
Findings Of Fact In this case, Respondent South Florida Water Management District (District) has proposed to issue to Respondent Centex Homes (Centex) an environmental resource permit (ERP) and authorization to lease sovereign submerged land. The purpose of the ERP and lease authorization is for Centex to construct a dock to serve a multifamily development known as Ocean Cay. Ocean Cay is a 56-unit townhouse development located on a five-acre parcel in Hypoluxo, Florida, bordered on the west by U.S. Highway 1, on the east by the Lake Worth Lagoon, and on the north and south by developed residential areas. At the time of the hearing, Centex had closed on the sale of 50 of the residential units, was finishing construction of the final six units, and had entered into contracts to sell three of these six units. The Lake Worth Lagoon is a Class III water and is not an aquatic preserve. The Intracoastal Waterway channel is in the middle of the lagoon. The proposed dock would be about 1.5 miles north of the South Lake Worth Inlet (a/k/a Boynton Inlet) and 13 miles south of the Lake Worth Inlet (a/k/a Palm Beach Inlet). As measured from the project location to the opposite shoreline, the length of the dock is more than 25 percent of the width of the waterbody. Petitioner Michael C. Brown resides at 131 Las Brisas Circle, Hypoluxo, Florida. Intervenor O'Brien resides at 124 Park Lane East, Hypoluxo, Florida. Intervenors Evlyn and Vern Hakes reside at 140 Park Lane East, Hypoluxo, Florida. As stipulated by Respondents, Petitioner and Intervenors have standing, so this Recommended Order will not restate the substantial evidence in the record of the standing of Petitioner and Intervenors. Three of the objections raised by Petitioner and Intervenors involve procedural issues that are easily dismissed on factual grounds. The first objection is that Centex lacks the requisite equitable interest in the upland to obtain a lease of sovereign submerged land. The second objection is that the Ocean Cay Homeowners' Association lacks the financial, legal, and administrative resources to ensure the performance of all permitting obligations, as they may arise in the future. The third objection is that District staff, not the Governing Board of District, issued the proposed agency action on the ERP. As for the first procedural objection, Centex acquired the parcel by special warranty deed, which vests fee simple interest in Centex and contains all the customary warranties of title. The title insurance policy obtained by Centex for the parcel insures fee simple interest in Centex, subject to undescribed reservations contained in the deed from the Board Trustees of the Internal Improvement Trust Fund (Trustees), any part of the parcel lying below the mean high water line, and public rights "to use the waters over the submerged land lying adjacent to or within the Intercoastal [sic] Waterway for boating, fishing, swimming and other public purposes, together with the rights of the State of Florida and United States to regulate the use of the navigable waters." Not only does Centex enjoy full beneficial ownership of the upland, subject to the rights of its grantees who have purchased townhouse units, but Centex's title extends approximately 250 feet waterward of the mean high water line by operation of a deed from the Trustees to a predecessor in interest of Centex. If the ownership of submerged land between the submerged land for which an applicant seeks a lease and adjacent uplands also owned by an applicant has any effect at all, it only emphasizes the legitimate, nonspeculative interest of such an applicant in obtaining the sought-after lease. As for the second procedural objection, Centex is a sophisticated land-development entity with ample financial, legal, and administrative resources to ensure the satisfaction of any permitting obligations imposed upon it in connection with this case. At present, Centex controls the Ocean Cay Homeowners' Association. So, at present, the concerns of Petitioner and Intervenors about the ability of the homeowners' association to satisfy its obligations are unfounded. It is true that, upon the closing of the sale of sufficient units, Centex will transfer control of the homeowners' association to the homeowners. The record does not describe the financial, legal, and administrative resources of the homeowners' association following the withdrawal of Centex, but they will presumably not approach the substantial resources of Centex. District claims that Centex may not transfer the ERP without District's approval; however, ERP Special Condition 2 identifies the operating entity responsible for the docking facility as Ocean Cay Homeowners' Association, even though the ERP identifies the applicant as Centex. Fatal to the argument of Petitioner and Intervenors, though, are the facts that the proposed lease of sovereign submerged land is for only five years, a failure to discharge permit obligations that should be incorporated verbatim into the lease militates against any lease renewals, and the removal of the dock would substantially cure any deficiencies in its maintenance. As for the third procedural objection, District staff, on November 21, 2003, proposed to issue a standard general ERP for the construction and operation of a 2665 square-foot docking facility with nine boat slips for use by the residents of Ocean Cay and to approve the lease of 7807 square feet of sovereign submerged land under and surrounding the docking facility. Staff issues a proposed standard general ERP when a permit does not conflict with existing law or policy or a work of the District. District's Governing Board issues a proposed standard individual ERP in the relatively rare case in which a permit conflicts with existing law or policy or a work of the District. Again, the objections of Petitioner and Intervenors lack factual support. Here, the Governing Board, not staff, will receive the Recommended Order and issue the Final Order. So, as Petitioner and Intervenors wish, the Governing Board, not staff, will take the final agency action in this case. Under these circumstances, the record reveals no harm in the fact that District staff issued the proposed agency action. The remainder of the ERP provisions bears on the substantive objections raised by Petitioner and Intervenors. As amended at the final hearing by District and accepted by Centex, ERP Special Condition 9 provides: A permanent sign shall be installed at the docking facility entrance to notify boat owners that mooring at the docking facility shall be limited to no more than a total of nine vessels. Vessels moored in slips 1-2 and 7-9 shall be limited to outboard powered vessels, not more than 27 feet in length as reported by the manufacturer exclusive of engines and any bow pulpit. Vessels moored in slips 3 and 6 shall be limited to not more than 27 feet in length as reported by the manufacturer exclusive of engines and any bow pulpit. Vessels moored in slips 3 and 6 are not limited to outboard power. Vessels moored in slips 4 and 5 shall be limited to 36 feet in length, as reported by the manufacturer exclusive of engines and any bow pulpit. Vessels in slips 4 and 5 are not limited to outboard power. Slips are identified by number in the discussion below. As amended at the final hearing by District and accepted by Centex, ERP Special Condition 10 provides: "Dock, walkway, and seagrass sign pilings shall be constructed of plastic, concrete or greenheart, non-CCA treated wood or wood wrapped in 30 to 60 mil pvc." ERP Special Condition 11 provides that construction of the dock shall be in accordance with the locations and dimensions shown on the enclosed exhibits. The referenced drawings depict the adjacent upland, submerged bottom, and proposed dock. The drawings describe sufficient detail of the adjacent upland. The north and south property lines of the 190- foot wide parcel run due east and west. At mean high water, the parcel's shoreline runs about 210 feet in a south-southwesterly direction from the north property line. Waterward of the mean high water line is a thin band of sand, varying portions of which are exposed between mean high water and mean low water. The drawings describe the submerged bottom in great detail as to seagrass and reasonable detail as to water depths. Waterward of the beach is a band of Halodule wrightii (shoal grass). The drawings describe the shoal grass in this area as "sparse." The drawings depict mean low water depths along three transects at 25-foot intervals, starting roughly at the landward commencement of the shoal grass. (All water depths are based on mean low water.) If the property lines were extended into the water, the north transect is 25 feet south of the north property line, and the south transect is 25 feet north of the south property line. The middle transect is an equal distance between the north and south transects. Along the north transect, the band of shoal grass is about 25 feet wide. Along the south transect, the band narrows to about six feet wide. Along the middle transect, the band is about 50 feet wide. Waterward of the band of sparse shoal grass, according to the drawings, is a band of "mixed Halodule and sparse Johnson's." The reference to "Johnson's" is to Halophila johnsonii (Johnson's grass), which is a rare species of seagrass that is listed by the U.S. Environmental Protection Agency as threatened. 50 C.F.R. § 17.12(h). Johnson's grass is found only on the east coast of Florida from the Indian River Lagoon to Biscayne Bay and is a fragile species of seagrass. The band of mixed shoal grass and sparse Johnson's grass reflects the same pattern as the shoal grass closer to shore: thinner at the north and south ends and wider in the middle. Along the north transect, the band of the two species is about 162 feet wide. Along the south transect, the band is about 212 feet wide. Along the middle transect, the band is about 240 feet wide. Waterward of the middle band of mixed shoal grass and sparse Johnson's grass, according to the drawings, is "scattered isolated blades of H. Decipiens and [Johnson's grass]." "H. Decipiens" is Halophila decipiens (paddle grass). Waterward of the north and south ends of the mixed shoal grass and sparse Johnson's grass are triangular-shaped areas of "sparse Johnson's." Along the north transect, this band of sparse Johnson's grass is about 75 feet wide. Along the south transect, this band of sparse Johnson's grass is about 50 feet wide. Waterward of these bands of sparse Johnson's grass is "scattered, isolated blades of H. Decipiens and [Johnson's grass]." Measured from the mean high water line, the band of mixed shoal grass and sparse Johnson's grass extends about 275 feet along the north transect, 312 feet along the middle transect, and 300 feet along the south transect. Water depths are shallow throughout almost the entire project area. Starting from shore, water depths are almost entirely less than 1.0 feet within the area of sparse shoal grass, although depths reach 1.2 feet along the middle transect. Proceeding waterward along the north transect, the depths within the area of mixed shoal grass and sparse Johnson's grass range from 0.7 feet at the landward end to 2.2 feet at the waterward end. Proceeding waterward along the middle transect, the depths within the area of mixed shoal grass and sparse Johnson's grass range from 1.2 feet to 4.2 feet. Proceeding waterward along the south transect, the depths within the area of mixed shoal grass and sparse Johnson's grass range from 1.0 feet to 2.7 feet. The water continues to deepen in the triangular-shaped areas of sparse Johnson's grass, through which the north and south transects run. Along the north transect, the water depths range from 2.2 feet to 3.1 feet. Along the south transect, the water depths range from 2.7 feet to 3.6 feet. The drawings depict depths waterward of the start of scattered, isolated blades of paddle grass and Johnson's grass. These reported depths extend to a point roughly parallel to the end of the proposed dock along the north transect, about 12 feet waterward of the end of the proposed dock along the middle transect, and about 37 feet waterward of the end of the proposed dock along the south transect. Along the north transect, the depths remain constant, at about 3.5 feet, until the most waterward 25 feet, along which the water deepens 0.5 feet to 4.1 feet. Along the middle transect, the depths deepen about 0.5 feet to around 5.0 feet for about 75 feet, then deepen to 5.4 feet a few feet landward of the most waterward portion of the dock. About 10 feet waterward of the end of the dock, the depth reaches 5.7 feet, which is the deepest reported depth in the project area. Along the south transect, the depths deepen about one foot over the first 100 feet waterward from the start of the scattered, isolated blades of paddle grass and Johnson's grass. From a point parallel to the end of the dock, the water along the south transect deepens another 0.5 feet to about 5.2 feet. The drawings also describe the proposed dock in great detail. The dock, oriented due east and west, runs a distance of 420 feet from its landing, at the mean high water line, to its waterward terminus. The dock is four feet wide, except for a 10-foot long section, at about midpoint, that is six feet wide to facilitate wheelchair access. At the urging of District, to reduce seagrass impacts, Centex moved the dock ten feet south and extended it ten additional feet into deeper water. Because of the former of these modifications, the dock runs ten feet south of the middle transect. The main deck of the dock is grated, so as to allow at least 46 percent of the light to pass through it, from the waterward extent of the sparse shoal grass to the waterward extent of the mixed shoal grass and sparse Johnson's grass, which is a distance of about 250 feet. Although the drawings specify only a value of 46 percent light transmissibility, testimony established that this criterion would require the use of fiberglass decking material. Perhaps the most prominent feature of the dock, in addition to its length, is its height. The deck is five feet above mean high water. Mean high water is 1.7 feet National Geodetic Vertical Datum (NGVD). Mean low water is -0.8 feet NGVD. Five decks run perpendicular to the main deck--three on the south side and two on the north side--to form the slips at the waterward terminus of the dock. The most landward of these decks is four feet wide and 30-feet long and runs south of the main deck, at a point about 330 feet waterward of the landing. Two more decks, both of the same dimensions as the first deck, join the main deck at a point about 375 feet waterward of the landing. Thirty-eight feet separate the two southern decks, so that the two slips created between them (Slips 9 and 8, from landward to waterward) each is 18-19 feet wide. The most landward slip formed north of the main deck (Slip 1) is also 18-19 feet wide. Two pilings north of the main deck and two pilings south of the main deck define these first three slips. The remaining perpendicular decks form the terminus of the entire dock. These decks are eight-feet wide and run 38 feet north and 38 feet south of the edges of the main deck. The four slips immediately landward of these decks are 18-19 feet wide. Moving clockwise from the northwest corner, these slips are Slips 2, 3, 6, and 7. The remaining two slips are waterward of the eight-foot wide deck. The northern slip is Slip 4, and the southern slip is Slip 5. According to the drawings, the waterward extent of the proposed lease is 18 feet waterward of the waterward end of the dock. The waterward extent of the proposed lease is 425 feet from the landward end of the Intracoastal Waterway channel (the 415 feet shown in the drawings is wrong), which, as established by testimony, is 125 feet wide at this location. The drawings also depict a 42-inch high handrail running from the landing to the most landward perpendicular deck. The purpose of the handrail, whose vertical slats are eight inches apart, is to discourage mooring of vessels to the main dock landward of the slips. Every 50 feet, at the base of the handrails on either side of the dock, is a sign prohibiting docking, mooring, loading, or unloading of vessels. At the terminus of the dock, the drawings show a rock crib structure that rises about one foot from the submerged bottom along the entire 80-foot length of the eight-foot wide perpendicular deck. Apparently, the rock crib is eight-feet wide, so that it extends, beneath the surface of the water, under the entire area of the eight-foot wide perpendicular deck. Extending above the rock crib, along this 80-foot long deck, is a wave attenuator. The drawings also depict a couple of seagrass warning signs north and south of the dock, about 20-30 feet waterward of the waterward extent of the sparse Johnson's grass, at the north and south portions of the project area, and the mixed shoal grass and sparse Johnson's grass, in the middle of the project area, just a few feet north of the dock. The drawings also show pilings at a minimum of 10-foot intervals along the entire length of the main deck, as well as pilings for the perpendicular decks at the dock's terminus. Special Condition 12 prohibits fueling facilities or hull-painting or -cleaning at the dock. Special Condition 13 prohibits liveaboards. Special Condition prohibits subleasing of the docking facilities and limits their use to residents of Ocean Cay. Special Conditions 14 and 15 detail various manatee- protection provisions. Special Condition 19 requires the implementation of a turbidity-control plan during construction. Special Condition 18 prohibits construction under the ERP until the Department of Environmental Protection has issued a submerged land lease. As amended at the final hearing by District and accepted by Centex, Special Condition 20 requires Centex to maintain at least one trash receptacle at the terminus of the dock. The District staff report states that Centex has minimized the impacts of the project by reducing the length of the dock from 550 feet and its capacity from 22 slips. The staff report notes, as mentioned above, the relocation of the dock ten feet to the south and ten feet waterward, both changes to reduce impacts on seagrasses. The District staff report states that manatees probably use the area of the project for travel and foraging nearshore seagrass beds. Concerning the lease of sovereign submerged land, the District staff report acknowledges the waterward extent of Centex's ownership of submerged lands. As for the sovereign submerged land, the District staff report states, without explanation, that the docking facility is not more than 25 percent of the width of the "navigable portion of the waterbody," pursuant to Florida Administrative Code Rule 18-21.004(4)(a)3, and is more than 100 feet from the federal navigation channel, as required by Florida Administrative Code Rule 18-21.004(4)(a)4. The District staff report attaches "Recommended Special Lease Conditions for Ocean Cay." These include a restriction that vessels moored at the dock clear the submerged bottom by at least one foot at all times while moored. Other provisions correspond to the special conditions attaching to the ERP, as described above. As discussed in the Conclusions of Law, analysis of the proposed activity requires three determinations: first, does the proposed activity, unmitigated, adversely impact surface waters; second, if so, has Centex reduced or eliminated all such impacts through design modifications to the extent practicable; and third, if so, but if net impacts remain, has Centex adequately mitigated these net impacts? Absent mitigation, the construction of a 420-foot dock covering 2665 square-feet of water adversely impacts the water resources, most obviously by the immediate destruction of the seagrasses occupying the area in which at least 80 pilings will be installed and by the gradual destruction of the seagrasses that will be shaded by the dock and lose the light necessary for survival. Centex has incorporated into the proposed dock design all practicable modifications that could eliminate or reduce these adverse impacts to the surface waters. Centex has proposed a dock that is narrow, high, translucent, and nontoxic. To minimize the risk of prop dredging of the seagrass and bottom sediments, the dock's length and railings would limit mooring to relatively deeper water, and the boat-length restriction would effectively limit the reach of prop dredging. Even after these design modifications, however, adverse impacts to the surface waters remain that Centex must mitigate. The ultimate issue, then, is whether Centex has adequately mitigated the remaining impacts of the proposed activity by proposing sufficient affirmative acts to offset the remaining adverse impacts. Strictly speaking, mitigation consists of activities that are unnecessary for the desired activity--here, the construction of a dock--but are performed to offset the adverse impacts of the desired activity. In this case, Centex proposes three mitigation activities: the construction of a rock crib, the installation of a wave attenuator, and the erection of two seagrass warning signs. The adequacy of this proposed mitigation requires identification of the specific impacts to the surface waters and the efficacy of the mitigation in offsetting these impacts. As cited in the Conclusions of Law, the public-interest criteria set forth the elements requiring consideration. Except to the extent discussed in navigation, the dock will not adversely affect the public health, safety, or welfare or property of others. The narrow, long dock, which restricts mooring activity to its terminus over 400 feet from the shoreline, has no impact on the riparian rights of adjacent or nearby upland owners. Thus, no mitigation is necessary for this criterion. Even after mitigation, the dock will adversely affect the conservation of fish and wildlife, including listed species, and their habitats. The most immediate impact of the dock is upon the seagrasses that presently grow on the bottom. Seagrasses, which are among the most productive communities known to nature, are vital to the health of the Lake Worth Lagoon. Seagrasses perform numerous functions important to the surface waters and, specifically, the conservation of fish and wildlife and their habitats: shelter for small fish and shellfish; food for a variety of small and larger organisms, including manatee and sea turtles; stabilization of bottom sediments, which improves water clarity; recycling of nutrients, including nitrogen--an important function for the water quality of the nitrogen-limited Lake Worth Lagoon; and formation of a substrate on which epiphytes may attach and provide food for a variety of organisms, including manatee and sea turtles. The mitigation activities offset some, but not all, of the functions provided by the seagrass that are lost by the construction of the dock. The rock crib probably will replace the function of the seagrass in stabilizing sediments. The rock crib probably will replicate some of the shelter function of the seagrass, although nothing in the record would support a finding that the crevices of the rock crib provide exactly the same shelter as the seagrass patches that will be destroyed by the dock. Thus, there is no basis to assume that the shelter functions of the seagrass are replaced by the shelter functions of the rock crib. Undoubtedly, the rock crib will not replace the food function of the seagrass. Some predators may find the same juvenile fish in the rock crib as they have found in the seagrass, and some organisms may find the same epiphytes attaching to the rock crib as they have found attaching to the seagrass. However, the organisms, such as manatee and sea turtles, that eat the seagrass itself will find the rock crib a poor food substitute. Additionally, the rock crib will perform none of the nutrient-fixing that seagrasses perform. The rock crib thus fails to perform the vital functions of seagrass in providing food for important species, such as the manatee, and fixing nutrients, which is important to improving or maintaining water quality. The wave attenuator is a potentially useful form of mitigation. Although a slight over-generalization, the seagrass thins to the point of near disappearance at a point in which the slope of the submerged bottom breaks--very roughly at about three feet deep. Centex's witnesses offered the better explanation of this phenomenon by linking it to the strong wakes produced by vessels motoring in the Intracoastal Waterway. Although the area of the proposed project is permanently slow speed, no wake, the Intracoastal Waterway channel has no speed limit, and the wakes from vessels in the channel pound the shallows, focusing considerable energy upon the rising bottom at the point at which the water depth reduces to three feet. The main problem with the wave attenuator as mitigation is one of scale. Nothing in the record suggests that the attenuator, even in conjunction with the rock crib beneath it, will attenuate the incoming waves along the entire length of the dock. The attenuator will absorb the energy of the waves, whether from passing vessels or storms, but the interrupted waves will rejoin a short distance landward of the attenuator, possibly waterward of the first appearance of significant seagrass. The wave attenuator is thus inadequate in preserving or enhancing the remaining seagrass following the construction of the dock. The signs suffer two shortcomings. First, they are as likely to attract fishers as they are to deter recreational boaters, so the record permits no finding as to their efficacy in preserving or enhancing the remaining seagrass following the construction of the dock. Second, the record discloses little prop dredging of the seagrasses in the proposed vicinity of the dock, so the effect of the signs is not to ameliorate the damage historically done in this area by boats. To the contrary, at best, the signs may reduce some of the prop dredging that would occur in the future by boats drawn close to shore by the presence of the dock, which will attract fish and, thus, fishers. For these reasons, the signs are inadequate mitigation. Considered in conjunction with each other, the three mitigation activities fail to address the important food and nutrient-fixing functions of the seagrass that would be destroyed by the dock. Ignoring the failure of the proposed mitigation to address two of the most important functions of the seagrass, District and Centex contend that the mitigation is adequate for other reasons. District and Centex contend that the loss of seagrass is de minimis, consisting of not more than .03 acres of destroyed seagrass, or about 2.2 percent of the seagrass in the project area. Although the east-west orientation of the dock results in more shading than an identical dock oriented north- south, the shading loss could be less due to commendable design modifications involving the width, height, and translucent materials of the dock. Adding to the loss of seagrass from shading is the loss from the "halo effect," which is the wider area of seagrass loss probably resulting from the effect of the dock in artificially attracting and retaining seagrass consumers, like parrot fish. The record thus affords no basis for a finding of a loss of less than .03 acres. Nor does the record afford any basis for determining that the seagrass loss is de minimis. If Lake Worth Lagoon has seagrass to spare, the record does not support such a finding. If the lost functions of the seagrass--primarily, providing food and fixing nutrients--are not de minimis, the question remains whether practicable mitigation for these functions exists. Although transplantation of seagrass may be impracticable due to poor water clarity, even one of Centex's experts noted the importance of filling holes for seagrass recruitment, given the inability of seagrass to extend roots laterally up or down slopes. District's expert identified backfilling submerged holes and scraping spoil islands as two means of encouraging natural seagrass recruitment. District's expert noted a practical consideration favoring rock cribs versus more elaborate, higher-maintenance mitigation. Rock cribs are low- or no-maintenance projects that require no monitoring, enforcement, or enhancement. However, these same considerations underscore the complexity of the functions provided by seagrass lost to the proposed activity. Mitigating the loss of these functions may be difficult and high-maintenance, if the mitigation is to offset the loss. On this record, a finding of impracticability of such mitigation activities would be speculative, given the absence of evidence of impracticability, such as in the form of the absence of nearby depressions with suitable recruitment conditions or seagrass restoration projects in which Centex could participate. An unusual factor militating against a finding of adequate mitigation is that one of the seagrasses is itself a protected species. Johnson's grass is rare and fragile. The dock would displace Johnson's grass in a location less than one mile north of one of ten federally designated Critical Habitats for Johnson's Seagrass and one of two such habitats in Lake Worth Lagoon. 50 C.F.R. § 226.213(h). In contrast to the permit conditions directly protecting the manatee, the record is silent as to any effort by District to coordinate this permit with the work of the federal government and possibly the state and local governments to preserve Lake Worth Lagoon's seagrass, including the threatened Johnson's grass. On balance, even after mitigation, the dock will adversely affect the conservation of fish and wildlife, including listed species, and their habitats. The dock will not adversely affect navigation, the flow of water, and erosion or shoaling. Located only 1.5 miles from the inlet, tidal flows are good in the project area. The rock crib and wave attenuator, which tend to restrict east-west flows and waves, will have little impact on the tidal flows, which are predominantly in a north-south direction. The dock will not cause any erosion or shoaling. The dock will be lighted and should not present a navigation hazard. Larger vessels will remain a safe distance from the dock as they travel in the Intracoastal Waterway channel. Under normal boating conditions, small boats, such as kayaks, canoes, and small motorboats, can safety navigate under the five-foot deck and between the pilings spaced at a minimum distance of ten feet apart. The dock will not adversely affect the fishing or recreational values in the vicinity. To the contrary, the structure provided by the dock will probably attract and concentrate fish, making them easier to catch. In the longer term, even after mitigation, the dock will adversely affect marine productivity for the reasons discussed in connection with the conservation of fish and wildlife and their habitat. The dock will not adversely affect any historical or archaeological resources. Even after mitigation, the dock will adversely affect the current conditions and relative value of functions for the reasons discussed in connection with the conservation of fish and wildlife and their habitat. For the reasons set forth above, Centex has failed to provide reasonable assurance that the proposed activity, even after mitigation, is not harmful to the District's water resources, is not inconsistent with District's overall objectives, is not contrary to the public interest, will not adversely impact the value of functions provided to fish and wildlife and listed species by surface waters, and will not cause adverse secondary impacts to the water resources
Recommendation It is RECOMMENDED that the South Florida Water Management District enter a final order denying Centex Homes' request for an environmental resource permit and approval to lease sovereign submerged lands for the purpose of constructing the above- described dock at Ocean Cay in the Lake Worth Lagoon. DONE AND ENTERED this 2nd day of August, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2004. COPIES FURNISHED: Henry Dean, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida Marcy I. LaHart 33416-4680 Marcy I. LaHart, P.A. 711 Talladega Street West Palm Beach, Florida 33405 Ashley D. Foster South Florida Water Management District 3301 Gun Club Road Mail Stop Code 1410 West Palm Beach, Florida 33406 J. Kendrick Tucker Huey, Guilday, Tucker, Schwartz & Williams, P.A. Post Office Box 12500 Tallahassee, Florida 32317-2500
Findings Of Fact Respondent Communities Financial Corporation is a Florida corporation engaged in the subdivision and sale of real property. In 1971 CFC purchased approximately twenty-two sections, or 22 square miles, of real property ("the land") in Township 34 South, Range 33 East, Okeechobee County, Florida, which it proposed to sell as individual one-and-one-quarter (1-1/4) acre lots. The subsequent development of that land is the subject of this proceeding. Respondent Coquina Water Management District ("Coquina") was organized pursuant to Chapter 298, Florida Statutes, by judgment of the Circuit Court for Okeechobee County, Florida to perform drainage activities on the land. The land which CFC purchased in 1971 was originally platted in 1912 in a grid system with roads, drainage canals, and ditches. Extensive drainage was required for use of the land because it was very flat and had a high water table. Approximately one-half of the land was subject to flooding. After it was originally platted it was utilized for cattle ranching with drainage ditches connecting the low areas to encourage runoff. Ten-acre tracts surrounded by dikes and two to three foot deep ditches were used for tomato farming. Such agricultural ditching covered approximately 15 square miles of the property. At one time a hotel was situated on a portion of the property. North-South and East-West roads and a 5,000-foot airstrip were constructed across the property. The East-West road along the South boundary of the property, which is now a state road, has an adjacent drainage ditch which received ranchland water runoff from property east of the land. In 1971 and 1972 CFC registered the platted lots for sale with the Division of Florida Land Sales and Condominiums ("Land Sales") of the State of Florida Department of Business Regulation. In the normal course of compiling the documentation to be submitted for registration, CFC contacted several state regulatory agencies to determine whether such agencies required CFC to obtain permits for development of the property. CFC provided those agencies copies of its drainage plans, which included roads, swales, canals, and control structures. The State of Florida Department of Natural Resources ("DNR") stated that the construction of improvements as planned in the development would not be subject to that agency's jurisdiction for purposes of a dredge and/or fill permit. The State of Florida Department of Pollution Control ("DPC"), predecessor of DER, first stated in a letter of October 4, 1971, to Mr. Moseley Collins, who submitted a "plan of reclamation to DPC, that it had no regulatory responsibilities over the project: In response to your request for comments this Department has conducted a preliminary review of the proposed plan. We have no basic objections to the overall plan of development and believe it could be platted as shown. Specific details as to drainage techniques will be reviewed at a latter [sic] date. It is brought to you [sic] attention that although we have no regulatory responsibili- ties in this area we will welcome the opportunity to review cross sections and details at a latter [sic] date. We thank you for the opportunity to review a project of this magnitude at an early date. [Emphasis added.] The DPC, in a letter of March 30, 1972, to Collins, also observed that: This Department has conducted a review of the revised plan for the subject project and endorse the approach that you are contemplating in developing these areas. I have coordinated with other agencies and organizations and they concur with the approach. We would like to review the project at a future date to deter- mine the method of construction of the swales or greenways to move the water from one lake to another through the complete watershed area. You and your client are to be commended on this approach. From the preliminary layout you can see the possibilities for the potential develop- ment of an area for residential usage that will retain a large percentage of the natural resources and minimize the downstream effect on the overall watershed. Please advise when you want to review the project in greater detail. [Emphasis added.] In connection with the registration of the development, CFC submitted to Land Sales the above-referenced letters from DNR and DPC, detailed evidence of the proposed plan of development, and a public offering statement for use in solicitation of lot sales from the general public. Each offering statement contains several statements to the effect that "this is not a homesite subdivision." Land Sales approved use of the offering statement. In using it to solicit sales, CFC committed to the purchasers that it would complete the required road and drainage improvements by December 31, 1979. CFC commenced sales of lots in the development in 1971. The Agreements for Deed approved by Land Sales and subsequently entered into by CFC with lot purchasers required CFC to deliver improved lots by December 31, 1979. Most of the land sales were made between 1971 and 1973. (6,412 lots were sold and 1,146 were conveyed by June 23, 1977.) Approximately eighty percent of the lots have been sold to date. Up to one-half of the approximately nine thousand lot purchasers hold legal title to their lots pursuant to deeds issued to them by CFC upon full payment. CFC began construction of the promised improvements, consisting of roads and drainage, in 1972. At the present time approximately $1,000,000 of improvements have been completed and approximately $750,000 remain to be completed. In 1973 or 1974, CFC and Coquina submitted plans for the surface water management system which CFC proposed to construct for the property to the South Florida Water Management District ("SFWMD"). The initial plan of development called for the construction of a road and canal system. At the request of SFWMD, the plan was subsequently changed to a road and swale system, and the configuration of one of the control structures was changed. The design changes resulted in more water retention on the property and the preservation of sensitive areas. After several years of analysis and review of the design plan, inspection of the project site, and a public hearing, SFWMD granted conceptual approval for the surface water management system to be constructed by CFC in 1977. The conceptual approval was partially based on the SFWMD staff's assessment than pollutant loadings from the property after development would be less than existing loadings, and that adverse water quality impacts as a result of the proposed development were unlikely. The 1977 SFWMD conceptual approval of the drainage plan for the development was followed by the issuance of a construction permit for the westernmost seven sections on March 15, 1979. Throughout this period construction was continuing. The drainage system as approved consists of grassed lot, roadside, and collector "swales" together with a retention area comprised of natural wetlands in the area of the property known as Ash Slough. The volume of water leaving the property after development will be the same as that leaving the property before development. The drainage conveyances are designed with gradually sloping sides, vary to widths of over 100 feet for the larger collector conveyances, and have depths varying from 2 feet for the "lateral" swales to 3 feet for the larger collector swales. The groundwater table in the area of the project site varies from zero to approximately 30 inches below ground surface. The swales were designed at the request of SFWMD in lieu of the canals proposed within the same easements in the original drainage plan for the development. It appears from the evidence that these drainage conveyances are designed so as to contain contiguous areas of standing or flowing water only following the occurrence of rainfall or flooding. Although some testimony indicated that these conveyances contained contiguous areas of standing water, these observations were made either at isolated times during the progress of construction or soon after a major hurricane passed through the area. Since the purpose of the "swales" is to facilitate drainage from the property, it would appear necessary from an engineering viewpoint to allow some period of time after construction of the swales for them to stabilize to make a valid determination that they will not function as designed. Accordingly, it would not appear unusual that the swales contain areas of standing water until they have been given ample opportunity to stabilize. On the basis of the record in this proceeding, a determination simply cannot be made at this point in time that the swales will not function as designed. Following DPC's initial determination of no jurisdiction in 1971 and 1972, it and DER, its successor agency, were not involved with the project until 1974, when DPC received an inquiry concerning land sales matters from the U.S. Department of Housing and Urban Development. In 1975, a DER staff member conducted a critical review of the Project and filed an internal memorandum faulting the project on the same essential grounds that are the basis for the Notice of Violation issued June 1, 1979. DER representatives participated in various SFWMD meetings from 1975 to 1977 when the conceptual approval of the drainage plan for the project was discussed. During this period, SFWMD forwarded copies of various materials dealing with the project to DER. Further, a DER representative attended the public hearing on September 8, 1977, when the conceptual approval of the project was granted by SFWMD. Respondents' first indication of DER's renewed interest in the development was a letter from DER Subdistrict Manager Warren Strahm to Robert Birenbaum on June 23, 1977. This letter stated, in part, that: The above referenced application/staff report has been supplied to this office by the South Florida Water Management District (SFWMD). It has been determined that your project is subject to Chapters 403 and/or 253, Florida Statutes. A review of drainage plans by our staff indicates the referenced project will comply with Chapter 403, Florida Statutes permit requirements for pollutant discharge. Since these plans have been incorporated into the SFWMD permit, no discharge permit or monitoring in addition to SFWMD permit requirement will be required by the Department at this time. It appears, however, that the referenced project may fall within the permitting requirements set forth in Chapter 17-4, Florida Administrative Code. Pursuant to F.A.C. 17-4.28(2) should any excavation take place in submerged lands or within the transitional zone of submerged lands, dredge and fill permits will be required by this Department prior to commencement of said activi- ties. [Emphasis added.] Please contact Mr. Roger G. Gallop, at the Fort Pierce Branch Office, telephone (305) 464-8525, at your convenience in order to discuss the need for a construction dredge and fill permit. Thank you for your cooperation. Three months later, in a letter from James Brindell to Coquina, Respondents were notified that: A review, by this agency, of the plans associated with your Surface Water Management Permit Applica- tion No. 02187-A indicates that permits will be required from the Department of Environmental Regulation pursuant to Chapter 403 and/or Chapter 253, Florida Statutes for the construction con- templated. Specifically, permits will be required for the construction and operation of discharge structures as well as for any dredging and/or filling in the waters of the state including the submerged lands and transitional zone of these submerged lands. Additionally, certification pursuant to section 401 of F.L. 92-500 may be required. Formal or conceptual appova1 of your project by the South Florida Water Management District does not imply that your project will satisfy the requirements of this agency. Please contact Mr. Warren G. Strahm, Subdistrict Manager, 3301 Gun Club Road, West Palm Beach, phone 305/689-5800, at your earliest convenience concerning application for these permits. (Emphasis added). This letter was followed one-and-one-half months later by a "Letter of Notice" from DER advising Respondents that DER had reason to believe the project was in violation of Chapter 403, Florida Statutes, and requesting CFC to cease any further work. Throughout this series of correspondence, CFC and Coquina maintained that DER did not have permit jurisdiction. This position was reasserted in a letter of November 1, 1977, from Emerson Allsworth, counsel for Coquina, to DER. During this period, numerous meetings were held involving representatives of Respondents and DER in which Respondents were urged by DER to apply for permits. Respondents failed to do so, and, on June 1, 1979, DER issued its Notice of Violation. Natural drainage from the property occurs southwestward into an area known as Ash Slough; southward from the central portion of the property into Gore Slough; and from the northeast section of the property into Company Slough. The headwaters of both Ash Slough and Gore Slough originate on the project site and periodically extend off Respondents' property to the south to join the waters of Chandler Slough. Chandler Slough, in turn, eventually empties into Lake Okeechobee 11 to 15 miles from the property. Company Slough also extends off the project site eastward onto the lands of others. There is, however, insufficient evidence in this record from which to conclude that Company Slough regularly exchanges flow with any other body of water. A "slough", as that term is used in the context of this proceeding, is a surface conveyance pathway for waters whose lateral boundaries are not as well-defined as a stream bed, and whose rate of flow is relatively slow. Due to the flat topography of the project site, Ash, Gore and Company Sloughs have imprecise boundaries, and their rates of flow appear to range at various times from very slow to nonexistent. By Cease and Desist Order dated March 28, 1978, the United States Army Corps of Engineers required Respondents to halt any further work then being conducted on the project, asserting that work in progress at that time was being conducted in waters of the United States, including adjacent wetlands, without first having acquired a permit from the Corps of Engineers. This Order provided, in part, that: Section 301(a) of the [Federal Water Pollution Control Act Amendments of 1972] makes it unlawful to discharge dredged or fill material into waters of the United States unless author- ized by a Section 404 permit issued by the Secretary of the Army acting through the Chief of Engineers. Section 10 of the River and Harbor Act of 1899 prohibits the excavation or depositing of material or erecting any struc- tures in navigable waters of the United States unless authorized by a Department of the Army permit. The work referred to in the paragraph above is deemed to have occurred in waters subject to these statutory requirements without the requisite permits and is considered unlaw- ful by this office. Prior to 25 July, the Corps of Engineers limited the requirement for Section 404 type permits to areas either below the mean high water line in tidal areas or below the ordinary high water line of rivers and streams which either now sup- port, had supported, or were capable of supporting interstate commerce. However, on 25 July 1975, the regulatory juris- diction of the District was expanded to all waters of the United States and adjacent wetlands. [Emphasis add.] Subsequently, however, by memorandum dated May 17, 1978, the United States Army Corps of Engineers determined that it did not have jurisdiction over Respondent's activities for the following reasons: In the northeast and eastern portion of the tract the flagponds and saw grass prairies are isolated with no discernible drainage sloughs or patterns. The other area of concern, in the south west sector, contains isolated ponds and an old man-made drainage canal that comprises shallow, intermittent potholes above the natural headwaters of Ash and Gore Sloughs. There was no recognizable flow in any part of the canal and the point at which average annual flow appear to be 5 c.f.s. or greater is located to the south a considerable distance from the subject tract. The project, as proposed, will not destroy or threaten any endangered species or their habitat nor adversely impact water quality of the ultimate receiving waters in Kissimmee River and Lake Okeechobee. In 1971, the Soil Conservation Service of the United States Department of Agriculture classified Ash and Gore Sloughs, as well as Fish Slough, to which Company Slough is alleged by DER to connect, as "intermittent". This determination is supported by hydrological data compiled by the South Florida Water Management District which shows no net flow in Chandler Slough for as many as six months in 1975 and four months in 1976. In the South Florida Water Management District report concerning flow patterns in Chandler Slough, it was pointed out that: The climate in this portion of Florida is subtropical with warm summers and moderate winters. Rainfall is seasonal with about 75 percent of the total occur- ring in a well-defined wet season, from May to October. This distribution of rainfall results in considerable surface water flow during part of the year. During the late winter and early spring many of the creeks and sloughs, such as Chandler Slough, become completely dry. [Emphasis added.] In addition, testimony in the record in this proceeding establishes that on at least one occasion during the time in which construction on the property was being conducted, Company Slough was completely dry. There is no data in the record quantifying the annual flow of water from Ash and Gore Sloughs into Chandler Slough. Further, there is no evidence concerning the periodicity of any such water exchanges between Ash and Gore Sloughs and Chandler Slough. As indicated above, the evidence establishes that Chandler Slough, which is the larger collector slough into which both Ash and Gore sloughs allegedly discharge, periodically becomes "completely dry." DER witnesses testified that they had observed contiguous areas of standing water in Ash, Gore and Company Sloughs during visits to the site, and had also determined the existence of an exchange of waters between Ash, Gore and Company Sloughs with other sloughs connecting to Chandler Slough by analyzing aerial photographs. However, those aerial photographs were not made a part of the record in this proceeding. Additionally, the relatively few visits to the site by these witnesses, in the absence of validly derived data establishing pertinent flow rates, is insufficient to establish "normal" conditions in the area. This is especially true in light of the aforementioned countervailing determinations based upon data compiled by the United States Army Corps of Engineers, the United States Department of Agriculture and the South Florida Water Management District. The evidence shows that some of the types of vegetation listed in DER's vegetation indices by which DER determines whether areas are "submerged lands" or "transitional zones" of submerged lands have been found on the project site. Among the types of vegetation observed in and around Ash, Gore and Company Sloughs are maidencane, water willow, pickerelweed, button bush, saw grass and St. John's wort. Although these species were detected in some locations by visual observation, apparently no attempt was made to quantify these plants vis-a-vis other vegetative types, nor were any physical measurements made to locate their boundaries. In a report dated August 26, 1977, the SFWMD attempted to identify the acreage, but not boundaries, of wetlands on the development site. The findings of that report show that approximately 2,014 of 14,080 acres, or 14.3 percent of the total site, contains wetlands vegetation. The report also indicates that the wetlands vegetation is scattered in different locations over the site, with the median occurrence being 68 acres per 640-acre section. DER presented quantified evidence showing turbidity readings in the Ash Slough area of the development during the construction of swales in August, 1979, of 325 Jackson Units and November and December, 1979, of 155 and 176 Jackson Units, respectively. It should be noted that these readings were performed after the filing of the Notice of Violation herein. Although samples of August 6, 1979, were taken without a background sample in Ash Slough, the evidence establishes that background readings in Ash Slough were less than 25 Jackson Units. The evidence clearly establishes that DER's water quality sampling and analysis were conducted in accordance with applicable requirements of Chapter 17, Florida Administrative Code. The evidence establishes that these readings are attributable to construction of swales and control structures and would not be expected to continue after completion of construction. There is no evidence to show the duration of the discharges resulting in these turbidity readings, nor is there any showing of actual damage to animal, plant or aquatic life. Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that those findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
