Findings Of Fact By application filed on September 9, 1980, Respondent/Applicant, John H. Land Builders, Inc., sought a permit from Respondent, Department of Environmental Regulation (DER), to conduct dredge and fill activities in an approximate one acre area located in the southeast corner of a proposed housing development in Section 10, Township 29 South, Range 19 East, in Hillsborough County, Florida. A copy of this permit application may be found as DER Composite Exhibit B. Specifically, Land sought to excavate 4,100 cubic yards of material (muck) and to backfill the area with 14,400 cubic yards of granular material from adjacent uplands to allow for development of a street and building lots in an unnamed wetland. A permit from DER is required because the project involves a wetland that is contiguous with a ditch that connects to the Palm River, all of which constitute waters of the State that are subject to dredge and fill permitting requirements. The plans have been reviewed by other state and local authorities in the Hillsborough County area, and no adverse comments have been received. After the installation is completed, the elevation of the land will be raised, and will permit five homesites to be built on the land as well as the construction of an access road to the property from an adjacent street. The installation in question is but a small part of a larger proposed housing development known as Timberlake Subdivision that will ultimately involve more than 300 homesites. However, no further dredge and fill activities under DER jurisdiction will be undertaken. The proposal of Respondent/Applicant was received by the Department and certain timely additional requests were made from the Department to the Applicant to provide information necessary to evaluate the request for permit. Applicant subsequently furnished the required information, and it may be found in DER Exhibit C. The Department performed a field inspection and review of the dredge and fill site, including the surrounding areas, to assess the impact of water quality caused by proposed dredging and filling activities in wetlands areas. It concluded that the Applicant had affirmatively provided reasonable assurance to the Department that the short-term and long-term effects of the activity would not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. A copy of the permit application appraisal may be found in DER Exhibit A. On January 21, 1981, DER issued its Intent to Issue a dredge and fill/water quality certification with certain conditions therein, including the requirement that future development be dependent upon separate stormwater review by the Department (DER Exhibit D). On October 20, 1980, Applicant filed a Notice of Stormwater Discharge with the Department's Southwest District Office in Tampa (DER Composite Exhibits B & F). Thereafter, the Department conducted a field inspection and review of the proposed housing development and surrounding areas to determine whether the proposed stormwater discharge would have a significant impact on water quality. Based upon the results of that inspection, which concluded that the proposed discharge would not have a significant impact on the waters of this State, the Department issued Applicant a stormwater exemption on November 7, 1980. The project site is located in an unnamed wetlands area. It is weedy and has a dense cover of primrose willow (Ludwigia peruviana), willow (Salix caroliniana), cattail (Typha sp.), red maple (Ace rubrum) and is overgrown with grapes vines (Vitus rotendifolia). It lies just to the north of a series of fish farms owned by Petitioner, Penisular Fisheries, Inc. Other commercial industries and single family dwellings are found south of the proposed activities. To the west and northwest lie marshlands, two old borrow pits, and Interstate Highway 4. Water runoff from the dredge and fill area will flow to the storm drainage system in the proposed street, and from there to a designated retention pond. Because there will be minor contaminants in the runoff, the water will be retained for treatment for a period of five days, which exceeds the 100 hour retention period required by DER. After treatment, the runoff will flow into a well-defined county drainage ditch west of 58th Street, travel down the ditch which lies adjacent to the fish ponds, and then meander into the existing marshland. Water runoff from the remainder of the project (excluding the dredge and fill area) will drain into the two existing borrow pit lakes which lie close to Interstate Highway 4. The designated retention pond will be located west of the project and has a controlled spill-off elevation. It will provide sufficient treatment to and cleaning of the water to insure that no violation of water quality standards will occur. A stormwater system to be constructed by Applicant will actually reduce the volume of water runoff now occurring. Reasonable assurances have been given that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Administrative Code. Based upon Use location of the point of discharge of Land's proposed stormwater discharge, the volume and frequency of discharge for which the proposed facilities are designed, and the anticipated constituents of discharge, the proposal will not have a significant impact on the water quality of the waters of this State. Accordingly, the exemption from stormwater licensing requirements was properly issued by the Department. Water quality violations which were alleged to have existed in a ditch on property adjoining the properties of Land and Petitioners were the subject of a notice of violation issued to the owners of that property. However, no notice of violation was ever issued to Land. Further, the ditch is not a part of the installation proposed by Applicant for issuance of the dredge and fill permit. Petitioners' concern is that Applicant has not given reasonable assurance that water quality standards would not be violated by the stormwater discharge and that downstream waters might be contaminated by urban runoff from the project. In reaching that conclusion, Petitioners' expert relied on a review of certain materials submitted to him by Petitioner's counsel. He did not visit the project site, nor had he reviewed drainage plans or construction drawings for drainage improvements contemplated by the notice of stormwater discharge filed by Land.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Department of Environmental Regulation grant the requested dredge and fill permit/water quality certification to Respondent/Applicant John H. Land Builders, Inc. It is further RECOMMENDED that the Respondent Department of Environmental Regulation enter a final order confirming the stormwater exemption issued by the Department to Respondent/Applicant on November 7, 1980. DONE and ENTERED this 27th day of April, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 27th day of April, 1981.
The Issue The issue to be determined is whether Petitioner Cargor Partners VIII – Long Bar Pointe, LLLP (“Cargor”) is entitled to an award of attorney’s fees pursuant to section 57.105, Florida Statutes (2017).
Findings Of Fact Notice On February 17, 2017, the attorney for Cargor sent Joseph McClash a letter on law firm stationary. In the first paragraph of the letter it states, “Please allow this letter to serve as notice of Cargor’s intent to seek relief pursuant to Section 57.105, Florida Statutes (the “Statute”) against you, individually as qualified representative, and the named Petitioner.” Cargor sent an email to McClash on February 28, 2017, reminding McClash that “the 57.105 deadline is March 10, 2017.” McClash referred to a motion for attorney’s fees that he received on or about March 13, 2017, but the motion was not shown to the Administrative Law Judge nor introduced into evidence. On April 5, 2017, the same day that McClash voluntarily dismissed the petition for hearing in DOAH Case No. 17-0655, Cargor filed with DOAH its motion for attorney’s fees under section 57.105. Contested Claims The renewal of a FDOW is governed by section 373.421(2), Florida Statutes, which states in relevant part that the FDOW shall be renewed “as long as physical conditions on the property have not changed, other than changes which have been authorized by a permit pursuant to this part, so as to alter the boundaries of surface waters or wetlands.” If the boundaries of wetlands or other surface waters have been altered without a permit, the FDOW cannot be renewed and an application for a new FDOW is required. The SWFWMD reviewer explained in a letter requesting additional information from Cargor: Please be advised that letters of exemption do not qualify as permits issued under Part IV of chapter 373, F.S. and therefore if work has been done on the site that has altered the wetlands or other surface water boundaries in association with a letter of exemption, a new formal determination application will be required. McClash claims Cargor did not qualify for the renewal of its FDOW because Cargor altered the boundaries of surface waters or wetlands on its property after the 2011 FDOW was issued and the some of the alterations were made pursuant to letter of exemption. In its February 17, 2017, letter to McClash, Cargor set forth six grounds for Cargor’s contention that McClash’s petition for hearing should be withdrawn. The first three grounds were described in Cargor’s letter as follows: The Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, which is the subject of this Proceeding, does not authorize any construction activity. Consequently, no standing to challenge is or could be properly presented. There is no injury in fact and no one is in immediate danger of a direct injury from the issuance of the Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, as of the date and time of filing the Petition in this Proceeding. Consequently, no standing to challenge is or could be properly presented. The Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, is not a permit, license, or authorization. Consequently, no standing to challenge is or could be properly presented by an association. These were issues of law and they were decided against Cargor in an Order dated February 28, 2017. The fourth and fifth grounds described in Cargor’s letter involve the central issue in the case: Changes in the land have been previously authorized by the Southwest Florida Water Management District (“SWFWMD”) pursuant to existing and final permits including (i) SWFWMD ERP No. 43040157.001, dated August 6, 2014, (ii) SWFWMD CONCEPTUAL ERP No. 49040157.002, dated September 4, 2015, (iii) SWFWMD ERP No. 4304157.003, dated March 31, 2016, and (iv) SWFWMD Notice of Qualification for Permanent Farming Exemption, dated August 30, 2016. Changes in the land are authorized by the identified permits and authorizations. All changes in the land have occurred pursuant to the identified permits and authorizations. Allegations to the contrary are simply false and are not supported by material facts. In 2015, Cargor was issued a “Conceptual ERP” permit, which describes, among other things, planned modifications to some agricultural ditches. However, the conceptual permit does not allow the commencement of construction activities. On August 30, 2016, SWFWMD issued to Cargo a Permanent Farming Exemption, pursuant to section 373.406(13), which authorized Cargor to excavate three agricultural ponds in uplands. In its application for the exemption, Cargor also proposed to modify some agricultural ditches. On March 31, 2017, SWFWMD issued Cargor an ERP Individual Construction Major Modification, which, among other things, authorized work in ditches. This permit was issued just before McClash’s voluntary dismissal and, therefore, could not have authorized the changes on Cargor’s property that McClash described in the petition for hearing. Before filing his petition, McClash consulted with a wetland scientist, Clark Hull, about the merits of McClash’s proposed challenge to the FDOW renewal. Hull gave McClash an affirmative response, but his input was speculative because it was based on assumptions and representations that Hull had not investigated. McClash consulted with another wetland scientist, Pamela Fetterman, who conducted an “aerial, desktop review of publically available Geographic Information Systems (GIS) data.” Fetterman described her initial review as an evaluation of potential undelineated wetlands and other surface waters. The Administrative Law Judge ruled that the delineation approved by the 2011 FDOW became final and could not be challenged by McClash. McClash then asked Fetterman to review changes in physical conditions on the property that occurred after the FDOW was issued. Fetterman produced a report (McClash Exhibit R-6), in which she opined that the changes to physical conditions on Cargor’s property “have a high likelihood of affecting the previously delineated landward extent of wetlands and other surface waters.” She stated further: [C]hanges in physical conditions of the property took place prior to issuance of the [FDOW renewal] as purported “exempt agricultural activities”, and include ditch dredging alterations to delineated other surface waters. . . . A Permanent Farming Request for Exemption Confirmation letter was applied for on August 23, 2016 for construction of these ponds and modification of existing ditches, some of which were determined to be jurisdictional other surface waters by the subsequently re-issued [FDOW]. At the final hearing on fees, neither McClash nor Cargor made clear to the Administrative Law Judge: (1) the physical changes to the property that were alleged to be authorized by permit, (2) the physical changes that were alleged to be authorized by exemption, or (3) any physical changes that were alleged to be unauthorized. The sixth ground described in Cargor’s letter is as follows: The picture attached to the Petition as set forth in Paragraph 9, and the stop work allegation set forth in Paragraph 10 are irrelevant and have no factual relationship to any issue in the proceeding. Since any changes in the land have occurred pursuant to identified permits and authorizations, the allegations are simply false and/or intentionally misleading. It is not a basis for an award of attorney’s fees under section 57.105 that an irrelevant photograph was included in a petition for hearing. Moreover, the aerial photograph in McClash’s petition was relevant in this case because it showed the physical conditions of Cargor’s property. In the petition, McClash states that Manatee County issued a stop work order on November 16, 2016, for construction activities commenced on Cargor’s property without a County- approved erosion control plan. This allegation also pertained to physical changes to the property. All evidence about physical changes was relevant in determining whether Cargor was entitled to renewal of the FDOW. Fees Cargor claims fees based on 48.4 hours of attorney time (Edward Vogler) at an hourly rate of $410, and 3.6 hours of attorney time (Kimberly Ashton) at an hourly rate of $385, for a total of $21,230.00. The fees Cargor is seeking include the hours spent on legal issues raised by Cargor that were rejected by the Administrative Law Judge. These fees amount to at least $1,025. See Cargor Exhibit 1, Invoice entries for February 20, 2017. Cargor’s attorney testified that the fees are reasonable. Cargor did not call an expert witness to corroborate the reasonableness of the hourly rate and the reasonableness of the hours expended.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent owns real property located in Township 2 North, Range 7 East, Section 32, in Madison County, Florida, that has surface water flowing through it and is encompassed within what is defined as "wetlands." Respondent is in control and possession of the property in question and all work on the property that is material to this proceeding is under the control or direction of the Respondent. There were access roads on the property as early as 1973 as reflected by Respondent's exhibit 2, a 1973 aerial photograph, but the width of the roads or the existence of ditches or culverts cannot be determined from the photograph. Petitioner's exhibit 2, a 1981 aerial photograph, shows the roads still in existence in 1981 but the width of the roads or existence of ditches or culverts cannot be determined from the photograph. Sometime before the Respondent purchased the property and began construction to expand the roads, ditches and culverts were in place; however, there was no evidence as to when the ditches and culverts came to be in place. A 1976 survey of the property reflects 60 foot roads which were to provide access to platted but unrecorded lots. These roads had not been constructed when Respondent purchased the property or began construction to expand the roads. The newly constructed portions of the road indicates an attempt to build the roads in accordance with the 1976 survey. The previously existing roads attempted to follow the natural contour of the land and as a result were not always straight, and only had a negligible effect on the flow or storage of surface water in regard to the property. Sometime around October 1987, Respondent began to rebuild and construct roads on the property by straightening existing curves, removing fill material from adjacent wetlands to widen and heighten the existing roadbed or construct a new roadbed, and to increase the depth and width of existing ditches or dig new ditches. The initial portion of the existing road providing access to the property from the county graded road has been substantially rebuilt with portion of the roadbed being 40 to 43 feet wide. Ditches along this portion of the roadbed have had their width increased up to 14 feet and their depth increased up to 6 and 8 feet. Other portions of the road has been expanded beyond the previously existing roadbed by increasing the width and height of the roadbed. The increased size of the ditches and the expanded roadbed has increased the interception of surface water above that already being intercepted by the previous roadbed and ditches and, as a result, there is an increased amount of surface water impounded or obstructed. The effect is that surface water is removed from Respondent's property at a faster rate than before road construction began and, as a result, sheet flow of surface water is decreased which diminishes the storage of surface water on the property. Although new culverts were installed during road construction, there was insufficient evidence to show that these new culverts were in addition to the culverts already in place or if they replaced old culverts. There was insufficient evidence to show that the new culverts allowed water to flow in a different direction or be removed from the property at a faster rate than before or if they impounded or obstructed surface water more so than before. The previously existing roads had sufficiently served an earlier timber harvest on the property and, by Respondent's own testimony, were sufficient for his ongoing hog and goat operation. The extensive rebuilding and constructing of roads in this case was neither necessary nor a customary practice for construction of farm access roads in this area. Respondent is engaged in the occupation of agriculture in that he has a bona fide hog and goat operation. However, Respondent's silviculture occupation is somewhat limited in that he is presently harvesting the timber but shows no indication of replanting or continuing the forestry operation upon completing the present harvesting operation. The extensive rebuilding and constructing of roads in this case goes beyond what is necessary or is the customary practice in the area for a hog or goat operation or forestry operation such as Respondent's and is inconsistent with this type of agriculture or silviculture occupation. Respondent has never applied for nor received a surface water management permit from the Petitioner even though the Petitioner has informed Respondent that a permit was required for the work being done on his property. The present alteration of the topography of the land by Respondent has obstructed and impounded surface water in such a fashion that the interruption of the sheet flow of surface water has been increased, causing the storage of surface water on the property to be diminished. At the present time, Respondent has been enjoined by the Circuit Court of Madison County, Florida, from any further activity on this project. However, should Respondent be allowed to complete this project, it is evident that the sole and predominant purpose would be to impound and obstruct the sheet flow of surface water and diminish the storage of surface water on the property in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, Suwannee River Management District, enter a Final Order requiring Respondent, Norman Leonard, to: (a) remove all unauthorized fill material placed within jurisdictional wetlands and return those areas to predevelopment grades and revegetate with naturally occurring local wetlands species to prevent erosion; (b) back fill excavated swale ditches, return road beds and excavated ditches to predevelopment condition and grades and seed disturbed non-wetland areas with a 50:50 mix of bahia and rye grass and; (c) refrain from any other development until and unless a required permit is obtained for such development. Respectfully submitted and entered this 13th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1445 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact 2. 4.-7. Are unnecessary findings for this Recommended Order. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Subordinate to the facts actually found in this Recommended Order. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Rejected as conclusions of law. Adopted in Findings of Fact 3 and 4. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Findings of Fact 15 and 17. 26.-29. Adopted in Finding of Fact 12. 30. Adopted in Finding of Fact 13. 31.-32. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 12. Adopted in Finding of Fact 16. 35.-38. Subordinate to facts actually found in this Recommended Order. 39.-42. Rejected as not being relevant or material. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1. The first paragraph adopted in Finding of Fact 16. The balance is rejected as a conclusion of law. 2.-3. Rejected as not being relevant or material. Not a finding of fact but a statement of testimony. However, it is subordinate to facts actually found in this Recommended Order. Rejected as not supported by substantial competent evidence in the record. The more credible evidence is contrary to this finding. COPIES FURNISHED: Janice F. Baker, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 Norman Leonard, Pro Se Route 2, Box 172-D Live Oak, Florida 32060 Donald O. Morgan Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, Florida Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether the City's applications for an individual stormwater permit and a noticed general environmental resource permit for Phase 1A of the proposed Hogtown Creek Greenway should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In these two cases, Respondent, City of Gainesville (City), seeks the issuance of a stormwater system management permit (stormwater permit) to construct a 2,000-foot long asphaltic trail/boardwalk, a parking facility and associated improvements for Phase 1A of the Hogtown Creek Greenway project in the north central portion of the City. That matter is docketed as Case No. 97-2845. The City also seeks the issuance of a noticed general environmental resource permit (NGP) to construct 481 square feet of piling supported structures over wetlands or surface waters for the same project. That matter has been assigned Case No. 97-2846. Respondent, St. Johns River Water Management District (District), is the regulatory agency charged with the responsibility of reviewing and approving the requested permits. Petitioner, Greenspace Preservation Association, Inc., is a not-for-profit Florida corporation primarily composed of persons who own real property adjacent to the route proposed by the City, as well as local environmental interests. Petitioners, Frank Ward, Sal Locascio, Frederick P. Peterkin, and Harold M. Stahmer, are individuals who own real property adjacent to the route proposed by the City for the Greenway. The parties have stipulated that Petitioners are substantially affected by the District's proposed action and thus have standing to initiate these cases. On March 28, 1997, the City filed applications for a stormwater permit and a NPG for Phase IA of the Hogtown Creek Greenway project. After conducting a review of the applications, including an on-site visit to the area, in May 1997, the District proposed to issue the requested permits. On June 9, 1997, Petitioners timely filed a Petition for Initiation of Formal Proceedings as to both intended actions. As amended and then refined by stipulation, Petitioners generally allege that, as to the stormwater permit, the City has failed to provide reasonable assurance that the project meets the permitting requirements of the District; the City has failed to provide reasonable assurance that the stormwater system will not cause violations of state water quality standards; the City has failed to provide reasonable asurance that the project satisfies the District's minimum required design features; and the City has failed to provide reasonable assurance that the stormwater system is capable of being effectively operated and maintained by the City. As to the NPG, Petitioners generally allege that the piling supported structure is not less than 1,000 square feet; the jurisdictional wetlands are greater than the area shown on the plans submitted by the City; the City has failed to provide reasonable assurance that the system will not significantly impede navigation; the City has failed to provide reasonable assurance that the system does not violate state water quality standards; the City has failed to provide reasonable assurance that the system does not impede the conveyance of a watercourse in a manner that would affect off-site flooding; the City has failed to provide reasonable assurance that the system will not cause drainage of wetlands; and the City failed to provide reasonable assurance that the system does not adversely impact aquatic or wetland dependent listed species. Respondents deny each of the allegations and aver that all requirements for issuance of the permits have been met. In addition, the City has requested attorney's fees and costs under Section 120.595(1)(b), Florida Statutes (Supp. 1996), on the theory that these actions were filed for an improper purpose. A General Description of the Project The Hogtown Creek Greenway is a long-term project that will eventually run from Northwest 39th Street southward some seven miles to the Kanapaha Lake/Haile Sink in southwest Gainesville. These cases involve only Phase 1A of that project, which extends approximately one-half mile. This phase consists of the construction of a 2,000-foot long asphaltic concrete trail/boardwalk, a timber bridge and boardwalk, a parking facility, and associated improvements. The trail will extend from the Loblolly Environmental Facility located at Northwest 34th Street and Northwest 5th Avenue, to the intersection of Northwest 8th Avenue and Northwest 31st Drive. The trail will have a typical width of ten feet. For the majority of its length, the trail will be constructed of asphaltic concrete overlying a limerock base, and it will generally lie at the existing grade and slope away from the creek. Besides the trail, additional work involves the repaving of Northwest 5th Avenue with the addition of a curb and gutter, the construction of an entrance driveway, paved and grassed parking areas, and sidewalks at the Loblolly Environmental Facility, and the widening and addition of a new turn lane and pedestrian crosswalk at the intersection of Northwest 8th Avenue and Northwest 31st Drive. The Stormwater Permit Generally The entire Phase IA project area lies within the Hogtown Creek 10-year floodplain. It also lies within the Hogtown Creek Hydrologic Basin, which basin includes approximately 21 square miles. The project area for the proposed stormwater permit is 4.42 acres. Water quality criteria Phase IA of the Greenway will not result in discharges into surface groundwater that cause or contribute to violations of state water quality standards. When a project meets the applicable design criteria under the District's stormwater rule, there is a presumption that the project will not cause a violation of state water quality standards. There are two dry retention basins associated with the project. Basin 1 is located at the cul-de-sac of Northwest 5th Avenue and will capture and retain the stormwater runoff from the new and reconstructed impervious areas at the Loblolly Facility. Basin 2 is located at the parking area and will capture and retain stormwater runoff at the existing building and proposed grass parking area. Under the stormwater rule, the presumptive criteria for retention basins require that the run-off percolate out of the basin bottom within 72 hours. The calculations performed by the City's engineer show that the two retention basins will recover within that timeframe. In making these calculations, the engineer used the appropriate percolation rate of ten inches per hour. Even using the worst case scenario with a safety factor of twenty and a percolation rate of one-half inch per hour, the two retention basins will still recover within 72 hours. The presumptive criteria for retention basins require that the basin store a volume equal to one inch of run-off over the drainage area or 1.25 inches of run-off over the impervious area plus one-half inch of run-off over the drainage area. The calculations performed by the City's engineer show that the two retention basins meet the District's volume requirements for retention systems. An applicant is not required to utilize the presumptive design criteria, but instead may use an alternative design if the applicant can show, based on calculations, tests, or other information, that the alternative design will not cause a violation of state water quality standards. As a general rule, the District applies its stormwater rule so that water quality treatment is not required for projects or portions of projects that do not increase pollutant loadings. This includes linear bicycle/pedestrian trails. The City's proposed trail will not be a source of pollutants. The City will install signs at both entrances to the trail to keep out motorized vehicles. Except for emergency and maintenance vehicles, motorized vehicles will not be permitted on the trail. The infrequent use by emergency or maintenance vehicles will not be sufficient to create water quality concerns. The construction of a treatment system to treat the stormwater from the trail would provide little benefit and would only serve to unnecessarily impact natural areas. Although treatment of the stormwater run-off from the trail portion of the project is not required under District rules, the run-off will receive treatment in the vegetated upland buffer adjacent to the trail. The District's proposed other condition number 3 will require the City to plant vegetation in unvegetated and disturbed areas in the buffer. This will reduce the likelihood of erosion or sedimentation problems in the area of the trail. Although disputed at hearing, it is found that the City's engineer used the appropriate Manning coefficient in the calculations regarding the buffer. Even without a vegetated buffer, run-off coming from the bicycle trail will not violate state water quality standards. The City will install appropriate erosion and sediment controls. These include siltation barriers along the entire length of both sides of the proposed trail prior to commencing construction. Such barriers will not allow silt or other material to flow through, over, or under them. The City will also place hay bales and any other silt fencing necessary to solve any erosion problem that may occur during construction. In addition, the permit will require an inspection and any necessary repairs to the siltation barriers at the end of each day of construction. Saturation of the limerock bed under the paved portion of the trail is not expected to cause a problem because heavy vehicles will not regularly use the trail. The trail portion of the project can be adequately maintained to avoid deterioration. Sensitive Karst Areas Basin criteria The two proposed dry retention basins for Phase 1A are located within the District's Sensitive Karst Areas Basin. They include all of the minimum design features required by the District to assure adequate treatment of the stormwater before it enters the Floridan aquifer and to preclude the formation of solution pipe sinkholes in the stormwater system. There will be a minimum of three feet of unconsolidated soil material between the surface of the limestone bedrock and the bottom and sides of the two retention basins. The appropriate mechanism for determining the depth of limestone is to do soil borings. The soil borings performed by the City show that there is at least three feet of unconsolidated material between the bottom of the basins and any limerock where the borings were taken. In other words, limestone would not be expected to be within three feet of the bottom of either basin. Based on the soil boring results, the seasonal high water table is at least six feet below ground level. The depth of the two retention basins will be less than ten feet. Indeed, the depth of the basins will be as shallow as possible and will have a horizontal bottom with no deep spots. To make the retention basins any larger would require clearing more land. A large shallow basin with a horizontal bottom results in a lower hydraulic head and therefore is less potential for a sinkhole to form. Before entering the basins, stormwater will sheet flow across pavement and into a grass swale, thereby providing some dispersion of the volume. Finally, the two retention basin side slopes will be vegetated. Special condition number 7 provides that if limestone is encountered during excavation of a basin, the City must over- excavate the basin and backfill with three feet of unconsolidated material below the bottom of the basin. Drainage and flood protection Contrary to Petitioners' assertions, the project will not adversely affect drainage or flood protection on surrounding properties. The trail will be constructed generally at existing grade. Because the trail will be constructed at existing grade, the net volume of fill necessary for Phase 1A is approximately zero. Therefore, there will not be a measurable increase in the amount of runoff leaving the site after construction, and the trail will not result in an increase in off-site discharges. District rules require that the proposed post- development peak rate of discharge from a site not exceed the pre-development peak rate of discharge for the mean annual storm only for projects that exceed fifty percent impervious surface. The proposed project has less than fifty percent impervious surface. Even though it is not required, the City has demonstrated that the post-development rate of discharge will not exceed the pre-development peak rate of discharge. Both basins will retain the entire mean annual storm so that the post-development rate of discharge is zero. Even during a 100-year storm event, the retention basins willl not discharge. Therefore, there will not be any increase in floodplain elevations during the 10, 25, or 100-year storm events from the proposed project. Operation and maintenance entity requirements The applicable requirements of Chapter 40C-42, Florida Administrative Code, regarding operation and maintenance, have been met by the applicant. The City proposes itself as the permanent operation and maintenance entity for the project. This is permissible under District regulations. The duration for the operation and maintenance phase of the permit is perpetual. The City has adequate resources and staff to maintain the phase 1A portion of the project. The public works department will maintain the stormwater management system out of the City's utility fund. The City provides periodic inspections of all of its stormwater systems. These inspections are paid for out of the collected stormwater fees. The City will also conduct periodic inspections of the project area, and the two retention basins will be easily accessed by maintenance vehicles. The City will be required to submit an as-built certification, signed and sealed by a professional engineer, once the project is constructed. Monthly inspections of the system must be conducted looking for any sinkholes or solution cavities that may be forming in the basins. If any are observed, the City is required to notify the District and repair the cavity or sinkhole. Once the system is constructed, the City will be required to submit an inspection report biannually notifying the District that the system is operating and functioning in accordance with the permitted design. If the system is not functioning properly, the applicant must remediate the system. The City will be required to maintain the two retention basins by mowing the side slopes, repairing any erosion on the side slopes, and removing sediment that accumulates in the basins. Mowing will be done at least six times per year. The City will stabilize the slopes and bottom areas of the basins to prevent erosion. The City has a regular maintenance schedule for stormwater facilities. The project will be included within the City's regular maintenance program. The City has budgeted approximately $80,000.00 for maintenance of the trail and vegetated buffer. Also, it has added new positions in its budget that will be used to maintain and manage the Greenway system. Finally, City staff will conduct daily inspections of the Phase 1A trail looking for problems with the vegetated buffer, erosion problems along the trail, and sediment and debris in the retention basin. If the inspections reveal any problems, the staff will take immediate action to correct them. The Noticed General Environmental Resource Permit Generally By this application, the City seeks to construct 481 square feet of piling supported structures over wetlands or surface waters. The proposed structures include a 265 square foot timber bridge over an un-vegetated flow channel, which connects a borrow area to Possum Creek, and a 216 square foot boardwalk over two small wetland areas located south of the flow channel. None of the pilings for the bridge or boardwalk will be in wetlands, and no construction will take place in Hogtown or Possum Creeks. The paved portion of the trail will not go through wetlands, and there will be no dredging or filling in wetlands. The receiving waters for the project are Hogtown and Possum Creeks. Both are Class III waters. Hogtown Creek originates in north central Gainesville and flows southwest to Kanapaha Lake/Haile Sink in southwest Gainesville. Possum Creek originates in northwest Gainesville and flows southeast to its confluence with Hogtown Creek south of the proposed bridge structure. Wetlands The total area of the proposed bridge and boardwalk over surface water or wetlands is approximately 481 square feet. The wetland delineation shown on the City's Exhibit 5A includes all of the areas in the project area considered to be wetlands under the state wetland delineation methodology. The United State Army Corps of Engineers' wetland line includes more wetlands than the District wetland line. The former wetland line was used to determine the area of boardwalk and bridge over wetlands. Even using this line, however, the total area of boardwalk over surface waters or wetlands is approximately 481 square feet and is therefore less than 1,000 square feet. Navigation The proposed system does not significantly impede navigation. Further, the structures will span a wetland area and an un-vegetated flow channel, both of which are non-navigable. In fact, the flow channel generally exhibits little or no flow except after periods of rainfall. Water quality The construction material that will be used for the bridge and boardwalk will not generate any pollutants. Morever, chemical cleaners will not be used on those structures. Silt fences will be used and vegetation will be planted in the vicinity of the bridge and boardwalk to prevent erosion and sedimentation problems. The amount of erosion from drip that comes off the boardwalk will be minimal. Therefore, the bridge and boardwalk will not cause a violation of state water quality standards. Off-site flooding The project will not impede conveyance of any stream, river, or other water course which would increase off-site flooding. The structures will completely span the wetland areas and flow channel, and no part of the structures, including the pilings, will lie within any water or wetland areas including the flow channel. There will be a span of 2.5 to 3 feet from the horizontal members of the bridge and boardwalk down to the ground surface which will allow water to pass through unobstructed. Further, there will not be any cross ties or horizontal obstructions on the lower portions of the boardwalk or bridge pilings. Further, due to the spacing of the pilings, the boardwalk and bridge will not trap sufficient sediment such as leaves to impede the conveyance of the flow channel. Therefore, conveyance through the flow channel will not be affected by the structures. Because the boardwalk and bridge are not over Hogtown or Possum Creeks, they will not cause any obstruction to the conveyance of the creeks. Aquatic and wetland dependent listed species The project will not adversely affect any aquatic or wetland dependent listed species. These species are defined by District rule as aquatic or wetland dependent species listed in Chapter 39-27, Florida Administrative Code, or 50 Code of Federal Regulations, Part 17. No such species are known to exist in the project area, and none are expected to exist in the location and habitat type of the project area. Therefore, contrary to Petitioners' assertions, there are no listed salamander, frog, turtle, or lizard species known to occur within the Hogtown Creek basin. Although it is possible that the box turtle may be found in the project area, it is not an aquatic or wetland dependent listed species. One baby American alligator (between two and three feet in length) was observed in the borrow pit area of the project on September 11, 1997. Except for this sighting, no other listed animal species have been observed in the project area. As to the alligator, the only area in which it could nest would be in the existing excavated borrow pit, and none of the proposed construction will take place in that area. More than likely, the alligator had walked into the area from Clear Lake, Kanapaha Prairie, or Lake Alice. The proposed structures will not affect the movement of the alligator nor its feeding habits. Drainage of wetlands Because the boardwalk and bridge are elevated structures over waters and wetlands, and the City has not proposed to construct ditches or other drainage systems, the proposed system will not cause drainage of the wetlands. Coral/macro-marine algae/grassbeds The proposed system is not located in, on, or over coral communities, macro/marine algae, or a submerged grassbed community. D. Were the Petitions Filed for an Improper Purpose? Prior to the filing of their petitions, Petitioners did not consult with experts, and they prepared no scientific investigations. Their experts were not retained until just prior to hearing. Petitioners are citizens who have genuine concerns with the project. They are mainly longtime residents of the area who fear that the Greenway will not be properly maintained by the City; it will increase flooding in the area; it will cause water quality violations; and it will attract thousands of persons who will have unimpeded access to the back yards of nearby residents. Although these concerns were either not substantiated at hearing or are irrelevant to District permitting criteria, they were nonetheless filed in good faith and not for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the applications of the City of Gainesville and issuing the requested permits. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 Jennifer B. Springfield, Esquire Mary Jane Angelo, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602-1110
The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
The Issue The issue is whether Respondent, Southwest Florida Water Management District (the "District"), should approve the application of Respondent, Florida Department of Transportation ("DOT"), for modification of a standard general environmental resource permit: modification permit no. 44011760.010 (the "modification permit").
Findings Of Fact Petitioner owns a developed parcel of mixed-use property in Pinellas County, Florida, known as the U.S. 19 Commerce Center (the "Commerce Center"). The Commerce Center is proximate to U.S. 19 and is located within the Alligator Creek Watershed. DOT is the state agency charged by statute with responsibility for the construction, maintenance, and operation of the State Highway System, including U.S. 19. DOT proposes a highway reconstruction project of a portion of U.S. 19 that is proximate to the Commerce Center and located within the Alligator Creek Watershed. DOT seeks the modification permit from the District in order to complete the highway reconstruction project. The District is a political subdivision that operates under the Florida Water Resources Act of 1972, Chapter 373, Florida Statutes (2001). (All statutory chapter and section references are to Florida Statutes (2001) unless otherwise stated.) The District is responsible for regulating, among other things, environmental resource permitting in Pinellas County, including the permitting for any regulated activity within the Alligator Creek Watershed. The area of concern for the District in this case involves a sub-basin within the Watershed that is crossed by several channels and drainage ditches including those identified by the parties as Channel A, Channel G, and the "east-west ditch." The channels and ditches in the sub-basin eventually flow into the ultimate outfall for the entire basin. On June 21, 1999, the District issued Environmental Resource Permit ("ERP") No. 4411760.008. The parties refer to that permit as the ".008" permit or the "original permit." Petitioner did not challenge the original permit. The original permit authorized DOT to construct a surface water management system for anticipated runoff caused by the reconstruction of U.S. 19 in the vicinity of Drew Street and the Commerce Center (the "original project"). DOT designed the original project to collect post development stormwater runoff, treat the runoff, and discharge it. The original project included several surface water detention ponds east of U.S. 19 in the vicinity of the Commerce Center. The parties identify those ponds as Ponds 4B, 4D1, 4D2, 4E1, and 4E2. DOT intended to locate Pond 4B on Commerce Center property. However, DOT and Petitioner were unable to agree on terms, and DOT filed a condemnation action in circuit court pursuant to DOT's power of eminent domain. DOT withdrew the condemnation action against Petitioner sometime before January 19, 2001. On January 19, 2001, DOT applied to the District for approval of a modification to the original permit. On June 1, 2001, the District issued permit modification No. 44011760.010. The parties refer to this second permit alternatively as either the ".010" permit or the "modification permit." This second permit is the modification permit that is at issue in this proceeding. The modification permit eliminates Pond 4B and authorizes the addition of Pond 4C to be located on property that is not owned by Petitioner. The modification permit also combines Ponds 4D1 and 4D2 into Pond 4D, and combines Ponds 4E1 and 4E2 into Pond 4E. In addition, the modification permit moves the point of discharge in the east-west ditch to the west closer to U.S. 19 and farther from the Commerce Center; places 7.72 acre-feet of fill in the 100-year flood plain; compensates for the fill by equivalent excavation and storage modeling; and places impervious liners in two ponds (the "modified project"). The modified project slows the rate of discharge in the system and increases water quality treatment. The modified ponds will have more storage volume, and the discharge rates from the ponds will be lower. The modified ponds will peak at hour 12 of a 25-year, 24-hour storm event. The modified project will discharge into Channel A and the east-west ditch. Petitioner challenges the modification permit, in relevant part, on the ground that DOT does not own the property required for the modified project and cannot acquire control of the property through the power of eminent domain. During the hearing, Petitioner represented that DOT had previously begun two condemnation actions to acquire property necessary for the original project but had entered voluntary dismissals of both actions. Petitioner argued that Florida Rule of Civil Procedure 1.420 bars DOT from instituting any future eminent domain actions to obtain control of property needed for the modified project. The evidence does not reveal the underlying facts associated with the condemnation actions referred to by Petitioner. If Petitioner were to demonstrate the legal necessity for DOT to acquire control of a portion of Commerce Center property in order to complete the modified project, there would be no evidentiary basis for a finding that the portion of Commerce Center property required for the modified project would be identical to that DOT previously sought to condemn twice in connection with the original project. Petitioner did not demonstrate the legal necessity for DOT to acquire control of Commerce Center property in order to complete the modified project. Applicable rules do not require ownership of property by entities with the power of eminent domain, including DOT. Rule 40D-4.101(3). Ownership is not a condition of issuance but is merely information that must be included in the permit application. Rule 40D-4.101(2). The original ALJ in this case issued a prehearing order that prohibits Petitioner from challenging DOT's ownership of the property needed to complete the modified project. The law of the case established in the prehearing order, prohibits Petitioner from challenging: the legal right of DOT to discharge into the east-west ditch; the legal ownership or control of the area of the project where Pond 4E is to be located; and the legal right to utilize Petitioner’s stormwater "retention" area. The preponderance of evidence shows that DOT currently owns all of the property necessary to construct the modified project. Furthermore, the modification permit specifically provides that DOT cannot begin construction until DOT owns or controls all property necessary for the modified project. The District correctly reviewed the application for the modification permit. The District correctly applied the design and performance criteria set forth in the Basis of Review for Environmental Resource Permit Applications (the "BOR"). The BOR is adopted by reference in the District’s rules. Rule 40D-4.091(1). The parties entered into several stipulations in addition to those previously discussed. In relevant part, the parties stipulated that no special basin criteria apply to the modified project. The parties also stipulated to the accuracy and veracity of the Alligator Creek Watershed Study (the "Alligator Creek Study"). The Alligator Creek Study is the only known source of both elevations and timings during rainfall events for the area surrounding the modified project. Among other things, the Study predicts stormwater levels in various locations during severe rainfall events. The predictions are based upon existing drainage capacity within the Alligator Creek basin and also upon certain assumptions regarding conditions that exist at the time that a rainfall event begins. The Alligator Creek Study, for example, predicts a high water level in Channel A of 23.28 feet at hour 16 during a 25-year, 24-hour storm event. The prediction is based upon the capacity of the receiving water-body, the current rate at which surface areas currently discharge into that water-body, and the assumption that the rainfall event is uniform across the entire Alligator Creek basin. The Study also assumes mean high tide at the ultimate outfall of the basin. The stipulations between the parties leave several issues to be determined. One issue is whether the east-west ditch is an historical discharge location in the area surrounding the modified project. The original permit and the modified permit authorize runoff to discharge into two locations. One location is the east-west ditch, and the other is Channel A. Petitioner claims that the east-west ditch is not an historical discharge location but is a detention facility constructed by Petitioner and is Commerce Center property that DOT cannot utilize in the modified project. In a prehearing order, the original ALJ in this case prohibited Petitioner from raising the arguments that the east-west ditch is not an historic discharge location and that DOT is not legally allowed to discharge into the ditch. Nevertheless, Petitioner submitted evidence relevant to the claim that the east-west ditch is not an historical discharge point. The modified project is located in an open drainage basin because the basin does not satisfy the definition of a closed basin in BOR 1.7.1. Compare BOR 1.7.29. The allowable discharge for projects in an open basin is the historic discharge. BOR 4.2.a.1. The District determines historic discharge first by reference to an existing or permitted site. BOR 4.2.a. The District considers a discharge at a point that has been permitted by the District to be a legally allowable discharge. The east-west ditch is a permitted discharge point in the original permit, and Petitioner does not challenge the original permit. The modified project moves the discharge point in the east-west ditch to the west farther from Commerce Center property. That change does not alter the determination that the modified project utilizes an historic discharge point authorized in the original permit. The discharge point for the modified project is within a permitted location in the original permit. In any event, Petitioner failed to show any adverse impact caused by moving the discharge point in the east-west ditch further west away from the Commerce Center. Putting aside the original permit, Petitioner claims that the east-west ditch did not historically extend west to U.S. 19 but was a detention pond required by the City of Clearwater as a condition of approval for the original development of the Commerce Center. The District looks back in time until 1984 to determine historic discharges. The historical drainage flow patterns for the locale of the modified project were in existence as early as 1971. The preponderance of evidence shows water flowing in the historical drainage pattern to the area of the east-west ditch. Prior to 1984, Petitioner excavated the east-west ditch to further enhance the drainage flow pattern. This is the drainage flow pattern that exists at the project location today. Another issue left unresolved by the stipulations between the parties is whether DOT provided reasonable assurances that the modified project will not cause adverse water quantity impacts to receiving waters and adjacent lands in accordance with the requirements of Rule 40D-4.301(1)(a). The appropriate standard for determining water quantity impacts for the modified project is the peak rate of runoff, rather than the volume of runoff. Compare BOR 4.2.a (defining allowable discharge in an open basin by reference to peak rates) with BOR 4.2.c (defining allowable discharge in a closed basin by reference to volume). Petitioner stipulated that there are no special basin criteria associated with the modified project, and Petitioner did not challenge the validity of the District's rules including those that measure water quantity impacts by peak rates of discharge. The District required DOT to calculate pre- development and post-development rates of runoff based on the District’s 24- hour, 25-year rainfall maps and the Soil Conservation Service’s type II Florida Modified 24-hour rainfall distribution. BOR 4.2.b. The data utilized by DOT are based on the assumption that rainfall will occur simultaneously over the entire basin. The assumption supports calculations based on a greater quantity of rainfall over the entire basin than would occur if it were assumed that rainfall began in a portion of the basin and then proceeded to cover the entire basin. DOT provided reasonable assurances that post- development discharge rates in the modified project will not exceed pre-development rates. Post-development discharge rates for the east-west ditch and for Channel A are 50.7 and 13.5 cubic feet per second ("cfs"), respectively. The respective pre-development discharge rates for the east-west ditch and Channel A are 62.7 and 29.5 cfs. Moreover, the post-development rates of discharge for the modified project are less than those for the original project. The area surrounding the modified project is flood- prone. Petitioner claims that the District should have reviewed the modified project for volume of runoff as well as rates of discharge. District rules require the District to consider volume in closed basins but authorize the District to consider only rates of discharge in open basins, such as the Alligator Creek basin, unless otherwise specified. The only specified exception is for the Delaney Creek basin. While some open drainage basins can be flood-prone and volume-sensitive, District rules do not distinguish between open basins that either are or are not flood- prone. The District cannot deviate from a valid existing rule. Section 120.68(7)(e)2. The exercise of agency discretion that considered rates of discharge rather than volume was consistent with applicable rules and prior agency policy. The evidence does not show any prejudice to Petitioner from the failure to consider volume. Petitioner failed to show that the amount of annual volume would increase once the modified project is completed. Aside from volume, other District rules prohibit projects that cause adverse flooding to the property of others. Rule 40D-4.301(1)(b), in relevant part, requires DOT to provide reasonable assurances that the modified project will not cause adverse flooding to on-site or off-site property. Rule 40D-4.302(1)(a)1, in relevant part, requires the District to consider a system’s effect on the property of others. The District measures the potential for flooding, in relevant part, by encroachment into the 100-year flood plain. District rules permit no net encroachment into the 100-year flood plain. However, the rules do allow for encroachment into the 100-year flood plain if the encroachment is offset. The modified project encroaches into 7.72 acre-feet of flood plain. As partial compensation for the loss, DOT provides 2.46 acre-feet of equivalent excavation. DOT compensates for the remaining 5.26 acre-feet of encroachment by storage modeling. Storage modeling consists of computer models that demonstrate how the ponds in the modified project will accommodate expected stormwater runoff from a 100-year, 24- hour rainfall event. The storage modeling assesses the storage capacity of the ponds on the basis of rainfall and tailwater. Tailwater is a downstream water condition that can be measured in terms of elevation, i.e., stage; and in terms of time, i.e., the hour in which a particular stage occurs. DOT's storage modeling demonstrates that the ponds in the modified project will first drain downstream and then fill from backflow that occurs as tailwater stages increase. DOT provided the storage modeling compensation in Pond 4E by designing it to take in backflow from the east-west ditch and Channel A during a 100-year storm event. The increased backflow capacity of Pond 4E provides the additional storage necessary to preclude any net encroachment into the 100-year flood plain. The storage modeling by DOT demonstrates that the modified project will not exceed the high water levels established in the Alligator Creek Study for a 100-year storm event. The storage modeling and the equivalent excavation provide reasonable assurances that the modified project will not cause adverse flooding to on-site or off-site property; and will not adversely affect the public health, safety, or welfare or the property of others. The storage modeling complies with the requirements of in BOR 7.7.3 for the District to review variable tailwater stages if they have a significant influence on the project design. The District considered the impact of the modified project on variable tailwater conditions based on data utilized for the Alligator Creek Study. Data utilized in the Alligator Creek Study are based on the assumption that rainfall during a 24-hour rainfall event will occur simultaneously over the entire basin. The assumption does not take into account 24-hour rainfall events that begin downstream from the modified project and increase tailwater stages before the ponds in the modified project can drain sufficiently to accommodate backflow from the increased tailwater stages. Petitioner's expert opined that the modified project could cause flooding of Commerce Center property if: the tailwater stage downstream from the modified project were higher than that assumed in the study; and a rainfall event started downstream in the Alligator Creek basin and moved across the basin toward the modified project. The expert determined that the earlier increase in tailwater stages could cause the peak runoff from the storm at approximately hour 12 to coincide with peak high tailwater stages. The expert opined that the coincidence of high water level in Channel A and the east-west ditch during the time of peak runoff from DOT's drainage system could overload Channel A and the east- west ditch and cause flooding on Commerce Center property. The opinion of Petitioner's expert was reasonable and credible as far as it goes. However, the expert opinion was not persuasive. Although the opinion was supported by underlying facts or data sufficient for admissibility, within the meaning of Section 90.705, the underlying facts and data were not persuasive. The underlying facts and data consisted of some information from two storms identified as: a three-year storm on July 15, 2001; and Tropical Storm Gabrielle on September 14, 2001. Petitioner's expert assumed a set of circumstances under which he opined that the modified project would fail but did not support the assumption with persuasive evidence. Information from the two storms relied on by the expert does not outweigh the modeling done by DOT based upon the Alligator Creek Study, the District’s 25-year design storm event, and other relevant District criteria. Petitioner did not submit a model different from that submitted by DOT and did not submit any evidence that the storage modeling presented by DOT was incorrect. The facts and data underlying the expert opinion are flawed for other reasons. The expert opinion utilizes numbers for the high tailwater mark in a 25-year design storm that were calculated in the Alligator Creek Study. Those numbers are based upon uniform rainfall across the basin. If rainfall does not occur simultaneously over the entire basin, the water draining into the basin will be less than that assumed in the Alligator Creek Study for a 25-year design storm. In a 25-year storm in which rainfall does not occur simultaneously over the entire basin, the high water level in Channel A will not be 23.28 feet, as shown in the Alligator Creek Study, but will be some unknown lesser elevation. If rain does not fall uniformly across the entire basin, the peak hour of runoff from the modified project may not occur at hour 12, and the high water level in Channel A may not occur at hour 16. The tailwater condition assumed in the Alligator Creek Study and the timing of that tailwater condition are both consistent with a simultaneous, across-the-basin rainfall event of 8-9 inches over a 24-hour period. In order to move the start of the tailwater condition, it would be necessary to recalculate the expected high tailwater conditions based upon rainfall occurring at different times throughout the basin. If a rainfall event is not uniform across the basin, the tailwater data underlying the expert opinion would decrease. The design-storm underlying the expert opinion would produce a storm surge of such magnitude that it would likely flood 75 percent of Pinellas County. The resulting storm surge or high tide would be much larger than the rainfall from a 100-year storm. Rule 40D-4.301(1)(c) requires DOT to provide reasonable assurances that the modified project will not cause adverse impacts to existing surface water storage and conveyance capabilities. Petitioner claims that the east-west ditch is either a detention or retention pond, within the meaning of BOR 1.7.5 or 34, and that the modified project will adversely affect the pond by discharging into it. The original ALJ established the law of the case in an Order on Motion to Strike that precludes Petitioner from raising this issue. Nevertheless, Petitioner claims that the east-west ditch is either a detention or retention pond. No part of the east-west ditch, including that part widened by Petitioner in 1984, is a detention or retention pond within the meaning of BOR 1.7.5 and 34. The post-development runoff rate into the east-west ditch from the modified project will be less than both the pre-development run-off rate and that rate previously authorized in the original permit. The post-development runoff rate from the modified project will not adversely affect any storage capabilities inherent in the ditch. DOT provided reasonable assurances that the modified project will not cause adverse impacts to existing surface water surface storage and conveyance capabilities. Rule 40D-4.301(1)(e) requires DOT to provide reasonable assurances that the modified project will not adversely affect the quality of receiving waters. The modified project will utilize wet detention ponds to provide water quality treatment. BOR 5.2.a requires wet detention ponds to treat the first inch of runoff; include a minimum of 35 percent littoral zone; and discharge the system’s treatment volume in no less than five days, with no more than one-half of the total volume being discharged within 2.5 days. The wet detention ponds in the modified project provide adequate water quality treatment by allowing stormwater to be stored in each pond for five days and by allowing sediments to settle on the bottom of the pond. Vegetation will occur within the ponds and provide for the uptake of the nutrients in the water. Skimmers will retain oils and greases in the pond. The ponds in the modified project will hold more water for a longer time than those in the original permit. DOT provided reasonable assurances that the modified project will not adversely affect the quality of receiving waters in accordance with the criteria in BOR 5.2.a. Petitioner's expert opined that water quality would be less than that required by District rules if the hypothetical events described in paragraphs 42 and 44 were to occur. However, Petitioner failed to provide persuasive underlying facts or data to support the expert opinion. BOR 5.2.a requires water treatment for only the first one inch of runoff because that is where oils and greases are located. The remaining runoff during a 25-year, 24-hour storm does not require water quality treatment. Rule 40D-4.301(1)(g) requires DOT to provide reasonable assurances that the modified project will not adversely impact the maintenance of surface or groundwater levels or surface water flows established pursuant to Section 373.042. DOT satisfied the requirements of the rule by showing that during a 100-year storm event, the modified project will preserve off-site water levels. Rule 40D-4.301(1)(i) requires DOT to provide reasonable assurances that the modified project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. DOT satisfied the requirements of the rule. The relevant evidence provided by DOT is based on the Alligator Creek Study. The Study is accepted in the engineering field as accurate, and the parties stipulated to the accuracy and veracity of the information contained in the Study. The modified project meets the conditions for permit issuance in Rules 40D-4.301 and 40D-4.302. The proposed project is located in a right-of-way dedicated for public highway purpose as required by Rule 40D-40.302(3)(a). The modified project will not drain lands outside of the jurisdiction of DOT within the meaning of Rule 40D- 40.302(3)(b)1. The modified project will not lower the dry season groundwater table outside of the project area within the meaning of Rule 40D-40.302(3)(b)2. The modified project will not lower groundwater tables where doing so would adversely affect existing legal users. BOR 4.6.4. The wet detention ponds in the modified project will be lined with an impermeable plastic liner which will "isolate" the stormwater from the adjacent groundwater table, will prevent the lowering of that table, and will preserve the water table as is. After installation of the liners, the water table will rise for approximately 30 days and then return to the pre-liner level. The modified project will not lower the groundwater table outside of the project area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that the Southwest Florida Water Management District enter a final order approving the application of the Florida Department of Transportation for Standard General Environmental Resource Permit No. 44011760.010.
The Issue The issues in this case are: Whether Petitioner, Warren M. Briggs ("Briggs"), should be issued a Wetland Resource Permit (WRP) for the construction of a single-family dwelling on a lot with jurisdictional wetlands in Santa Rosa County, Florida, as proposed in his application submission of 1998; and Whether the Department would permit the construction of a single-family dwelling on the subject lot under conditions and circumstances other than those set forth in Briggs' application.
Findings Of Fact Briggs is the owner of Lot 67, Block H, Paradise Bay Subdivision, located in southern Santa Rosa County ("Briggs lot"). Paradise Bay Subdivision was developed in approximately 1980, prior to the passage in 1984 of the Warren Henderson Wetland Protection Act. (Official Recognition of Section 403.918, Florida Statutes). The subdivision consists of modestly priced single- family homes that are attractive to young families because of the quality of nearby schools. The typical non-waterfront home in the subdivision is single story, approximately 2,000 square feet in area, and built on a concrete slab. The typical setback from the road to the front edge of a home is 75 feet. This fairly consistent setback from the road prevents the view from one home into the adjacent property owner’s back yard and, thereby, adversely affecting the neighbor’s property value. The undeveloped Briggs lot was purchased in 1981 for approximately $15,000 and remains undeveloped. Briggs bought the lot, along with three other lots in the subdivision, as investment property. The other three lots have been sold. One of the lots sold earlier by Briggs was a waterfront lot on East Bay located in jurisdictional wetlands. The entire lot was filled pursuant to a permit issued by the Department. The Briggs lot is 90 feet wide by 200 feet deep. It is located on the south side of Paradise Bay Drive. The lots on the north side of Paradise Bay Drive are waterfront lots on East Bay. To the rear (south) of the Briggs lot and other lots on the south side of Paradise Bay Drive, is a large swamp that eventually discharges into East Bay. The major connection between the Briggs lot and East Bay is through a culvert under Paradise Bay Drive. The Briggs’ lot consists of 2,914 square feet of uplands and 15,086 square feet of state jurisdictional wetland, with all of the uplands located in the northern half of the lot. Converted to acres, the Briggs lot consists of 0.067 acres of uplands and 0.347 acres of state jurisdictional wetland. Lot 66, immediately east of the Briggs lot, has been cleared and is about half tietie swamp with the remainder consisting of uplands and disturbed wetlands. Some fill has been placed on the lot. Lot 68, immediately west of the Briggs lot, is undeveloped and consists of all tietie wetlands. Lots 69, 70 and 71 of Block H of the subdivision are undeveloped and consist primarily of wetlands. The Department issued a permit on October 31, 1996, that allowed the owners of Lot 71 to fill 0.22 acres (9,570 square feet) of wetlands. The fill is allowed to a lot depth of 145 feet on the west side, and to a width of 73 feet of the total lot width of 90 feet. The fill area is bordered on the east and west by wetland areas not to be filled. The Department issued a permit on November 13, 1997, that allowed the owner of Lot 61 to fill 0.26 acres (11,310 square feet) of wetlands. Fill is allowed over the entire northern 125 feet of the 185 foot-deep lot. On April 28, 1998, Briggs applied to the Department for a permit to fill Lot 67. The Department, in its letter of August 7, 1998, and its permit denial of September 2, 1998, erroneously described the project as consisting of 0.47 acres of fill. The entire lot consists of only 0.41 acres, of which 0.067 acres is uplands, leaving a maximum area of fill of 0.343 acres. If Briggs’ residential lot is to be used, some impact to the wetlands on the lot is unavoidable. Alternatives discussed by Briggs and the Department, three of which are still available for Briggs to accept, included the following: One hundred feet of fill with a bulkhead separating the fill from the wetland area, with no off-site mitigation; Fill pad could be placed on property with the remainder of the wetlands on the site to remain in their natural state with no backyard, with no off-site mitigation required; One hundred feet of fill with a bulkhead separating the fill material from the wetland, with a small back yard, with no off-site mitigation required. Briggs did not accept any of the foregoing alternatives or proposed acceptable mitigation measures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the permit application, provided that the parties may reach subsequent agreement regarding proper mitigation in order to make the construction of a single-family dwelling possible on the Petitioner’s property in this case. DONE AND ENTERED this 19th day of November, 2001, in Tallahassee, Leon County, Florida. _ DON W. DAVIS 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 19th day of November, 2001. COPIES FURNISHED: Charles T. Collette, Esquire Lucinda R. Roberts, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Jesse W. Rigby, Esquire Clark, Partington, Hart, Larry Bond and Stackhouse 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether Respondent Neal Colley should be issued a permit to fill certain wetlands located within the regulatory jurisdiction of the Department of Environmental Regulation.
Findings Of Fact The Department of Environmental Regulation is the agency with regulatory jurisdiction over the subject matter of this case, pursuant to Chapter 403, Part VIII, Florida Statutes, and related administrative rules. On or about October 19, 1989, Neal Colley (hereinafter "Colley") filed his Permit Application No. 571717171 with the Department of Environmental Regulation (hereinafter "DER") seeking a permit to fill wetlands located within the regulatory jurisdiction of the Department. Colley's application was related to a residential development identified as the Deer Point subdivision located in Gulf Breeze, Florida. As proposed in the application, the subdivision would contain 0.91 acres of fill in jurisdictional wetlands, 31 buildable lots and a 31 slip marina. The site of the development is adjacent to Pensacola Bay and Santa Rosa Sound, Class III waters. In February, 1990, Colley modified the application by deleting the proposed marina. Colley also proposed to fill on an additional 14 lots, bringing the total of jurisdictional wetlands fill to 2.8 acres. On July 6, 1990, subsequent to review of the application, the DER published notice of it's intent to deny Colley's application. The DER based the action on Colley's failure to provide reasonable assurances that the project would not result in significant wetlands habitat loss and water quality degradation. Colley filed a request for administrative hearing challenging the intent to deny the application. 1/ Thereafter, Colley and the DER discussed several amendments to the application directed at meeting the DER's objections to the original application. On or about August 20, 1990, Colley modified the proposed development by reducing the total number of lots to 31 and reducing the fill required. Colley further agreed to other conditions designed to otherwise mitigate the apparent adverse impacts of the project. In determining the acceptability of a mitigation proposal, the DER weighs the proposal and assigns "credit" for the mitigation proposal which provides a quantifiable method of evaluating a mitigation proposal. For example assignment of a 1 to 1 ratio indicates that there must be one acre of "mitigation" for every one acre of fill. In this case, the combined mitigation credit would allow the filling of 2.16 acres of fill. In his mitigation proposal, Colley reduced the amount of fill for which permission is sought to 2.14 acres in jurisdictional wetlands. This is the minimum which will provide Colley with an economically acceptable number of buildable lots. As onsite mitigation, Colley agreed to convey 29.2 acres of high quality wetlands adjacent to the existing public "Shoreline Park" to the City of Gulf Breeze for preservation as an additional public park. Of the 29 acres, 9 are jurisdictional wetlands which the DER assigned a mitigation ratio of 70 to The remaining 20 wetlands acres were assigned a mitigation ratio of 50 to 1. The application of the mitigation ratios to the 29 acres results in credit of .50 acres of fill. Colley also agreed to offsite mitigation in the form of preservation of 46 acres of high quality jurisdictional wetlands at Innerarity Island, to be conveyed by Colley to the University of West Florida. The DER assigned a mitigation ratio of 100 to 1, resulting in a credit of .46 acres of fill. Colley further agreed to onsite creation of 1.47 acres of marsh. The marsh creation plan provides for scraping down the land surface between two existing wetlands areas and planting the scraped surface with wetlands vegetation consistent with the vegetation found in the existing wetlands. Based upon the location of the wetlands creation and the availability of suitable vegetation for transplantation, there is a substantial likelihood that the created wetlands will function successfully. The DER assigned a mitigation ratio of 1.25 to 1, resulting in a credit of 1.2 acres of fill. The DER staff, both locally and in Tallahassee, reviewed the amended project and determined that the proposal, as amended, was acceptable under the DER's standards. The DER gave notice of it's intent to issue the permit for the amended project proposal. The greater weight of evidence establishes that the amended project will not violate water quality standards. In the short term construction phase, the permit requires sequencing of construction and use of hay bales and other turbidity screens to prevent discharge of runoff into the adjacent wetlands. In the longer term, post-construction phase, the project utilizes a system of retaining walls and buffer swales which are designed to prevent direct discharge of stormwater into the wetlands areas. The project permit requires utilization of best management practices and design standards which should operate to prevent violation of water quality standards. The greater weight of evidence establishes that the amended Colley project is not contrary to public interest. The preservation of a total of 75 acres of high quality wetlands by conveyances to the City of Gulf Breeze and the University of West Florida eliminates further development pressure in the parcels, and is clearly in the public interest. The evidence fails to establish that the project will adversely affect the public health, safety, or welfare or the property of others. There is no evidence that the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitat or that the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The biological impacts of the amended project are minimal. There is no evidence that endangered or threatened species habitat in the area. There was anecdotal testimony related to adverse impacts on fishing allegedly resulting from other development. However, the evidence is insufficient to establish that this project will adversely affect fishing. There is sporadic water exchange between the surrounding bays and the interior wetlands, likely caused by periods of high rainfall which result in outflows of water from the wetlands into the bays. Water flowing from the bays to the wetlands may occur on occasion, however, water salinity samples taken immediately prior to the hearing showed, at most, minimal salinity in the wetlands. The types of vegetation and marine organisms within the wetlands are more common to fresh water areas than to salt water marsh. There is no evidence that the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The permanent nature of the project and the wetlands preservation conveyances provide a public benefit and are in accordance with the mitigation criteria. The existing wetlands to be preserved are acknowledged to be of high quality. Considering the site and existing vegetation adjacent to the location of the proposed 1.47 acres of created wetlands, the probability for success of the created wetlands area is substantial. It is highly likely that the created wetlands will provide the same conditions and functional values as the impacted wetlands. There is no evidence that the project will adversely affect or will enhance significant historical and archaeological resources. The evidence establishes that the adverse impacts which led to the DER's original determination not to permit the project, are either eliminated by the modification of the project or are offset by the mitigation plan which is part of the modified project. As to the cumulative impacts of the project, the onsite preservation proposal results in providing permanent protection for a 29 acre wetlands parcel which could otherwise be permitted for development. Outside this project, including the 29 acre wetlands mitigation area, there are few undeveloped lots remaining in the Deer Point area which contain jurisdictional wetlands. Prior to development on these lots, permits would be required. The lots would be required, on a case-by-case basis, to meet dredge and fill standards, and could be required to mitigate adverse impacts if such exist. The evidence establishes that the Colley project adequately mitigates any cumulative impact directly or indirectly related to this project. At hearing, the Petitioner failed to testify or otherwise offer evidence that would support a finding that Petitioner is substantially affected by the DER's proposed issuance of the permit for Colley's Deer Point Subdivision.
Recommendation Based on the foregoing, it is hereby recommended that the Department of Environmental Regulation enter a Final Order dismissing the petition of Linda L. Young and granting permit number 571717171 to Neal Colley. RECOMMENDED this 10th day of May, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1991.
The Issue The issue in this case is whether the Respondents, Kelly Endres and Ifrain Lima (Endres/Lima), are entitled to an Environmental Resource Permit (ERP) that would allow use of 0.535 acres of previously impacted wetlands for the construction of a single-family residence and associated structures, a 30' x 30' private dock with a 4' access walkway, and a 12' wide boat ramp (Project) at 160 Long Acres Lane, Oviedo, Florida (Property).
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties The Department is the administrative agency of the state statutorily charged with, among other things, protecting Florida's air and water resources. The Department administers and enforces certain provisions of chapter 373, part IV, Florida Statutes, and the rules promulgated, thereunder, in the Florida Administrative Code. Under that authority, the Department determines whether to issue or deny applications for ERPs. Respondents Endres/Lima own the Property and are the applicants for the ERP at issue in this consolidated proceeding. Petitioner Meier is a neighboring property owner to the south of the Property. Petitioner Meier's property includes a single-family residence with accessory structures and is located on Long Lake. Petitioner Meier is concerned that the NOI provides inadequate environmental protections and that there will be flooding on adjacent properties from the Project. Petitioner Hacker is the neighboring property owner adjacent to the south of the Property. Petitioner Hacker's property includes a single-family residence with accessory structures and is located on Long Lake. He is concerned with the completeness of the application for the Project, the calculation of wetland impacts, that reasonable assurances were provided, and that the Department's NOI ignores willful negligence and allows disparate treatment of Respondents Endres/Lima. Petitioner Kochmann is a property owner with a single-family residence and accessory structures located on Long Lake. She is concerned that the NOI is based on a misleading application and provides no evidence that the Respondents Endres/Lima made reasonable efforts to eliminate and reduce impacts detrimental to the environment. History of the Project and Application On April 12, 2018, Respondents Endres/Lima applied for an ERP for proposed wetland impacts associated with a planned single-family home on the Property. This was the first ERP application for the Property. The Department sent a Request for Additional Information (RAI) on April 24, 2018, and a second RAI on November 2, 2018. Respondents Endres/Lima provided a Mitigation Service Area Rule Analysis for "As If In-Basin" for the Lake X Mitigation Bank for the St. Johns River Water Management District Basins to the Department via email on May 10, 2018. Respondents Endres/Lima submitted revised plans to the Department on September 19, and October 30, 2018. On January 7, 2019, the Department denied the ERP application. The Department and Respondents Endres/Lima, on July 18, 2019, entered into a Consent Order (CO). The Department found, and Respondents Endres/Lima admitted, that approximately 0.80 acres of jurisdictional wetlands were dredged and filled without a valid ERP from the Department; and was done with improperly installed erosion and sedimentation controls. On August 22, 2019, Respondents Endres/Lima submitted a second ERP application. The Department sent an RAI on September 20, 2019, to which Respondents Endres/Lima responded on December 19, 2019. In addition, Respondents Endres/Lima reserved 0.60 of forested Uniform Mitigation Assessment Method (UMAM) wetland credits from the Lake X Mitigation Bank and provided the Department with an updated site plan and Lake X Mitigation Bank credit reservation letter. The Department issued an NOI on February 7, 2020, which was timely published in the Sanford Herald on February 9, 2020. Respondents Endres/Lima provided timely proof of publication to the Department on February 13, 2020. Consent Order and Compliance A warning letter was issued to Respondents Endres/Lima on January 30, 2019, for the dredging and filling of approximately 0.80 acres of forested wetlands and improper installation of erosion and sedimentation control. The CO, executed on July 18, 2019, required Respondents Endres/Lima to cease any dredging, filling, or construction activities on the Property, submit an application for an Individual ERP within 30 days, and pay $5,599.00 in penalties and the Department's costs and expenses. After the issuance of an ERP, Respondents Endres/Lima were also required to implement the restoration actions outlined in the CO. Respondents’ Endres/Lima’s application, dated August 19, 2020, was submitted to the Department on August 22, 2020. Respondents Endres/Lima paid the CO's penalties and costs, and had multiple meetings with the Department to complete the requirements of the CO. Respondents Endres/Lima’s expert, Mr. Exner, testified that he began working on a restoration plan for the Property, which will be provided to the Department once an ERP is issued. Permitting Criteria The Department reviewed the complete application and determined that it satisfied the conditions for issuance under Florida Administrative Code Rule 62-330.301, and the applicable sections of the ERP Applicant's Handbook Volume I (AH Vol. I). The Department also considered the seven criteria in rule 62-330.302 and section 373.414(1)(a), and determined that implementing the Project would not be contrary to the public interest. Water Quantity, Flooding, Surface Water Storage and Conveyance Respondents’ Endres/Lima's civil engineering expert, Mr. Herbert, testified that according to the drainage design, the Property would have swales on either side of the proposed residence to slope water away from the residence. There would also be a conveyance swale on the north property boundary to convey water from the street area and front yard toward the restoration and wetland areas with ultimate discharge to Long Lake. He stated that the elevation of the road at the front of the Property would be at 47.4 feet, and the elevation at the terminus of the swale would be at 45 feet. This would allow a 2.4-foot vertical fall for the swales to convey water to the lake. The design would preserve pre-development surface water flow over the Property to Long Lake, which is the lowest elevation in the area, and will ensure that storm water does not flood adjacent properties. Mr. Herbert also testified that the Project design would maintain pre-development water storage capacity. The imported fill that is currently on the Property in the flood plain would be removed and reshaped so that the lake elevation would be maintained and water can flow correctly. Elimination or Reduction of Impacts and Mitigation Respondents Endres/Lima provided the Department with design modifications to reduce impacts associated with the Project. These included a 15-foot restoration buffer along the lake front's northern shoreline, an elevated access walkway five feet above the wetland restoration area to the proposed dock, limiting the width of the access walk to four feet, and limiting the boat ramp width to a single-lane. In June 2015, an informal wetlands determination was conducted for the Property. The informal determination concluded that the entirety of the Property were wetlands. However, this was an informal determination and was not binding. In October 2016, before the first permit application was submitted, Mr. Exner did a wetlands delineation flagging prior to the Property being cleared or disturbed. Mr. Exner testified that, in his opinion, the Property was not all wetlands because large pines near the road had no high water marks, adventitious growth around the bases, or evidence of pine borer beetles along with other indicators of upland habitat. This wetland delineation was part of the permit submittal, was shown on the plans, was accepted by the Department, and was used for the preparation of the UMAM scoring. Mr. Exner's wetland delineation line was used by the Department to help determine and map the wetland impacts identified in the CO. The direct impact area was assessed at 0.54 acres with a secondary impact area of 0.02 acres for a total impact of 0.56 acres, and a functional loss score of 0.364. Respondents Endres/Lima reserved 0.6 forested UMAM mitigation credits, almost double the amount of functional loss under the UMAM assessment, agreed to purchase 0.46 credits. The excess mitigation bank credits implement part of a plan that provides regional ecological value and greater long-term ecological value than the area of wetland adversely affected. Secondary and Cumulative Impacts The Project's UMAM analysis assessed 0.02 acres, or 870 square feet, of secondary impacts. These impacts would be fully offset by the mitigation proposed for the Project. Petitioners' expert, Mr. Mahnken, noted three areas where he thought the application was incomplete. The first was that the site plan did not call out the location of the secondary impacts. However, Part III: Plans of Section B of the application, does not require that the site plan show the location of the secondary impacts. The application requirements for "plans" requires only the boundaries and size of the wetlands on the Property and provide the acreages of the upland areas, wetland impact areas, and the remaining untouched area. Second, Mr. Mahnken questioned the calculation performed to determine the secondary impact acreage. However, Mr. Mahnken read the information incorrectly and stated that the secondary impact area was 0.002 acres, or 87 square feet, when the UMAM score sheet clearly showed that the secondary impact area is 0.02 acres, or 870 square feet. In addition, the Department's witness, Ms. Warr, testified that even if the Department were to use Mr. Mahnken's analysis, the result would have been the same, i.e., the requirement to purchase 0.46 mitigation credits. Thus, Petitioners failed to support their claim that the Project would have adverse secondary impacts. Third, Mr. Mahnken asserted that cumulative impacts were not adequately addressed. He testified that the assessment for the Property using spill over benefits, in his opinion, was not enough to fully offset the impacts of the Project. Mr. Mahnken acknowledged, however, that his opinion was open to debate, and that he had not conducted any rigorous hydrologic evaluation in reaching his opinion. Respondents Endres/Lima had submitted a report prepared by Breedlove, Dennis & Associates (BDA Report) with their application in order to demonstrate compliance with section 10.2.8, ERP AH Vol. I, regarding cumulative impacts. The BDA Report utilized peer-reviewed hydrologic data that was reviewed and approved by the South Florida Water Management District, and was accepted by the Department pursuant to section 373.4136(6)(c). This was consistent with the Property's location within the mitigation service area for the Lake X Mitigation Bank. The Project is located within the Econlockhatchee River drainage basin, which is a nested basin within the larger St. Johns River [Canaveral Marshes to Wekiva] drainage basin. The Lake X Mitigation Bank is located outside of the Econlockhatchee River drainage basin, but the Project is located within the Lake X Mitigation Bank service area. The BDA report determined that: In summary, the Lake X Mitigation Bank is a regionally significant mitigation bank site that has direct hydrological and ecological connections to the SJRWMD basins, to include the cumulative impacts basin in which the subject property is located (i.e., SJRWMD Basin 19). The size, biodiversity, and proximity of the mitigation bank site to the SJRWMD basins, and the regionally significant hydrological connection between the mitigation bank site and the contiguous SJRWMD mitigation basins, supports the use of this mitigation bank site “as if in basin” mitigation for the Lima/Endres Wetland Fill Project. Additionally, the evaluation of factors, to include connectivity of waters, hydrology, habitat range of affected species, and water quality, demonstrates the spillover benefits that the Lake X Mitigation Bank has on the St. Johns River (Canaveral Marshes to Wekiva) mitigation basin, which includes the Econlockhatchee River Nested basin, and demonstrated that the proposed mitigation will fully offset the impacts proposed as part of the Lima/Endres Wetland Fill Project “as if in-basin” mitigation. The Lake X Mitigation Bank will protect and maintain the headwaters of two regionally significant drainage basins [i.e., the Northern Everglades Kissimmee River Watershed and the Upper St. Johns River Watershed (to include the nested Econlockhatchee River basin)], and will provide resource protection to both river systems (SFWMD Technical Staff Report, November 29, 2016). Furthermore, the permanent protection and management of the Lake X Mitigation Bank will provide spillover benefits to the SJRWMD basins located within the permitted MSA. Mr. Mahnken stated that his review of the Project did not include a hydrologic study and only looked at basic flow patterns for Long Lake. By contrast, the BDA Report included an extensive hydrologic study, looked at all required factors in section 10.2.8(b), ERP AH, Vol. I, and determined that the Project would be fully offset with the proposed mitigation. Thus, Respondents Endres/Lima provided reasonable assurance that the Project will not cause unacceptable cumulative impacts. Water Quality Rule 62-330.302(1)(e) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely affect the quality of receiving waters such that the state water quality standards will be violated. The conditions of the ERP would require the use of best management practices including a floating turbidity curtain/barrier, soil stabilization with grass seed or sod, and a silt fence. Respondent Endres/Lima's experts, Mr. Herbert and Mr. Exner, testified that there is an existing turbidity barrier in the lake around the property and a silt fence around the east half of the Property. While these items are not required by the Department until construction of the Project, part of the silt fence and the turbidity barrier are already installed on the Property and will be required to be repaired and properly maintained in accordance with the conditions of the ERP and Site Plan SP-2. Mr. Herbert testified that the Property will be graded in a manner that will result in a gentle sloping of the lake bank in the littoral zone, which would allow revegetation of the lake bank. Outside of the restoration area and the undisturbed wetlands, the backyard would be covered with grass to prevent migration of sand and soil discharging into the lake. Mr. Exner testified that the grass swales proposed for the Project would provide a considerable amount of nutrient uptake and filtration of surface water on the Property. Also, in the restoration area next to the lake, the restoration plan includes a dense planting plan with native species that have good nutrient uptake capability. Impacts to Fish and Wildlife Rule 62-330.301(1)(d) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Mr. Exner testified that, in his review of the Property, he did not identify any critical wildlife habitat. He visited the Property multiple times and he did not see any osprey nests, deer tracks, animal scat, gopher tortoises, or sand hill cranes. The Department's Ms. Warr testified that the Florida Fish and Wildlife Conservation Commission database was reviewed, and did not show any listed species in the area. Publication of Notice Petitioners argued that the notice published in the Sanford Herald on February 9, 2020, did not meet the requirements of section 373.413(4). Despite the notice having no effect on their ability to timely challenge the proposed ERP, Petitioners argued that the published notice was insufficient because the notice itself did not provide the name of the applicants or the address of the Project, only a link to the Department's permit file. Unlike the notice required in section 373.413(3), where a person has filed a written request for notification of any pending application affecting a particular designated area, section 373.413(4) does not specify the contents of the published notice. Section 373.413(4) does not require the published notice to include the name and address of the applicant; a brief description of the proposed activity, including any mitigation; the location of the proposed activity, including whether it is located within an Outstanding Florida Water or aquatic preserve; a map identifying the location of the proposed activity subject to the application; a depiction of the proposed activity subject to the application; or a name or number identifying the application and the office where the application can be inspected. In response to the published notice, the Department received approximately ten petitions challenging the NOI, including the petitions timely filed by Petitioners. Therefore, Petitioners were not harmed by any information alleged to have been left out of the published notice. Ultimate Findings Respondents Endres/Lima provided reasonable assurance that the Project 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; and will not cause adverse impacts to existing surface water storage and conveyance capabilities. Respondents Endres/Lima provided reasonable assurance that the Project complied with elimination and reduction of impacts, and proposed more than adequate mitigation. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse secondary impacts to water resources; and unacceptable cumulative impacts to wetlands and other surface waters within the same drainage basin. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse water quality impacts to receiving water bodies. Respondents Endres/Lima provided reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife, and listed species by wetlands, or other surface waters. Petitioners failed to prove lack of reasonable assurance by a preponderance of the competent substantial evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order granting Respondents’ Endres/Lima's ERP application. DONE AND ENTERED this 1st day of December, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2020. Jay Patrick Reynolds, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 (eServed) Neysa Borkert, Esquire Garganese, Weiss, D'Agresta and Salzman 111 North Orange Avenue Post Office Box 398 Orlando, Florida 32802 (eServed) Tracy L. Kochmann 249 Carolyn Drive Oviedo, Florida 32765 (eServed) Shelley M. Meier 208 Long Acres Lane Oviedo, Florida 32765 (eServed) Brian Hacker 170 Long Acres Lane Oviedo, Florida 32765 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)
Findings Of Fact On November 13, 1990, the St. Johns River Water Management District (SJRWMD) Governing Board voted to issue to the University of North Florida (UNF), a Management and Storage of Surface Waters (MSSW) permit #4-031-0359GM for the construction and operation of a surface water management system associated with road and parking lot construction on the UNF campus in Jacksonville. On the same day, the board also voted to issue water resource management permit #12-031-0007G authorizing dredging and filling in waters of the state related to said road and parking lot construction. Petitioners timely petitioned for hearing, challenging the SJRWMD decision to award the permits. Neither the standing of the Petitioners nor the Intervenor is at issue in this proceeding. The UNF campus contains approximately 1000 acres in Duval County, Florida, and lies completely within the jurisdiction of the SJRWMD. The UNF is an agency of the State of Florida, and has the apparent authority to make application for the referenced permits. The UNF campus is designated as a wildlife sanctuary. Of the 1,000 acres, wetlands constitute approximately 450 acres. Prior to development of the UNF campus, the property was utilized for silviculture, with pine trees farmed and harvested on the land. The property was and continues to be crossed by numerous logging roads and trails. During the 1970's extensive alterations occurred in the property related to local development activity. Swamps and stream flows were disrupted. Wetlands headwaters were altered by the construction of lakes. Adjacent highways and office developments were constructed, borrow pits were utilized, and wetlands were filled. There is some planted pine forest, generally no more than 40 years old, remaining on the UNF campus. Much of the UNF property remains undeveloped and consists of a variety of common habitat, including pine flatwoods, oak hammocks, and various wetlands. The existing UNF campus is crossed by a series of wetlands located generally north to south through the property. The wetlands include Sawmill Slough, Buckhead Branch, Boggy Branch, and Ryals Swamp. The water in the area flows to the southeast. Previous construction of UNF Drive required the crossing of Buckhead Branch and the filling of portions of Boggy Branch. The UNF now proposes to construct approximately .66 miles of three lane roadway across the southern portion of the campus to connect the existing UNF access drive into a loop (the "loop" road), approximately .34 miles of two lane roadway from a point on the loop into an upland area in the southeastern part of the campus (the "eastern connector"), pave an existing parking lot near UNF nature trails, and construct related surface and stormwater management facilities. The purpose of the loop road project is to enhance access around the UNF campus. The eastern connector will provide access to an undeveloped upland area of the campus. The expansion is related to and required by the anticipated continued growth of the University. The on-campus silviculture logging roads and trails, which remain from the pre-development period, have long been utilized by the UNF community as nature trails. The trails bisect a substantial part of the remaining undeveloped campus. In 1978, approximately 12 miles of trails were listed by the UNF with the United States Department of the Interior as National Recreational Trails, a national collected listing of recreational trails. These named trails, (the "maintained trails" as identified below, and the White Violet, Switchcane, and Turkey Trace trails) were marked by means of paint blazing and signs. In some locations, such markings, and at least one sign remain visible, even though the paint markings have not been repainted since the original blazing occurred. The UNF is fiscally unable to maintain all twelve miles of trail for general public use. The UNF concentrates maintenance and education efforts on three of the trails, the Blueberry, the Red Maple and the Goldenrod (hereinafter referred to as the "maintained trails"). The maintained trails, approximately 6 miles in total length, are signed and marked to provide clear and safe direction through the area. For public use, the UNF provides educational materials related to the maintained trails. Approximately 17,000 persons use the maintained trails annually. Two rangers are employed to supervise the maintained trails. In the most recent two year fiscal period, about $21,000 has been spent rebuilding and upgrading parts of the maintained trails. The UNF provides no security for the logging trails (hereinafter the "unmaintained trails") which are not part of the maintained trail system, and does not encourage the use of the old logging roads as trails. The proposed road construction project will adversely affect the use of the unmaintained trails because the road projects will intersect and overlap several of the trails. The evidence fails to establish that the UNF is without authority to amend, alter, relocate or abandon trails listed with the United States Department of the Interior as National Recreational Trails, or that notice need be provided to the Department prior to such action. There are additional recreational facilities available on the UNF campus, including two jogging trails, as well as a multi-sport facility in the north part of the campus. Approximately 10 total miles of trails exist (including the maintained trails and excluding the unmaintained logging trails). Persons who travel to the maintained trails by automobile currently park in an unpaved lot. The proposed roadway construction for which permits are being sought includes expansion and paving of the nature trail parking lot. This improvement will provide for better access to, and increased utilization of, the maintained trails and eliminate maintenance problems experienced in relation to the unpaved parking area. Notwithstanding the adverse impact on current use of the unmaintained logging trails, the project will enhance recreational development. Operation of the stormwater system, which will result in improved water quality discharged into the receiving waters, will not adversely affect recreational development. Although the recreational values of the impacted unmaintained trails will be adversely affected, on balance the additional access to the maintained trails and the recreational opportunities presented elsewhere on the UNF campus negate the impact on the unmaintained trails. Construction of the roadway will adversely impact portions of the Boggy and Buckhead Branches, which contains wetlands (as defined by, and under the jurisdiction of, the SJRWMD) and waters of the State of Florida (as defined by, and under the jurisdiction of, the Florida Department of Environmental Regulation, which has authorized the SJRWMD to review projects on the DER's behalf). The extent of the wetland impact was determined by the UNF and corroborated by the SJRWMD in an reliable manner. The wetlands impact areas are identified as follows: Area 1, at the upper margin of Boggy Branch, includes slash pine canopy and mixed bay trees; Area 2 is primarily second growth loblolly bay canopy, dense undergrowth, swamp. The loblolly is approximately 20 years old; Area 3 is a west flowing connection between Boggy and Buckhead Branches; Area 4, (the Buckhead Branch crossing), is bay canopy and bottomland hardwood. Areas 1, 2 and 4 will require filling for the construction of the loop road. Area 3 requires filling for the construction of the eastern connector. A total of approximately 2.3 total acres of forested wetlands are included within the impacted area. Of the 2.3 acres identified as wetlands for MSSW permitting purposes, 1.5 acres are classed as waters of the state for purposes of dredge and fill permitting. The wetlands are generally classified as fair to poor quality, although there is a limited wetland area classified as fair to good quality. The wetlands impact of the project on wetland dependent and off-site aquatic species would, without mitigation, be unpermittable. The loop road project includes three drainage areas. Accordingly to plans, drainage area #1 is served by curbs and gutters into storm sewers and discharging into wet detention pond E, drainage area #2 is served by curbs and gutters into storm sewers and discharging into wet detention pond F, and drainage area #3 is served by curbs and gutters discharging into a dry retention swale located adjacent to the road. Stormwater management and treatment for the eastern connector will be provided by a swale system located adjacent to the eastern connector. The western portion of the loop road and the newly paved nature trail parking lot will be separately served by a dry swale system and two retention ponds at the newly paved nature trail parking lot. Wet detention ponds retain the "first flush" stormwater runoff and discharge the water at a reduced rate through a "bleed down" structure. Pollutant removal occurs when first flush runoff is retained and mixed with additional water. Pond and soil organisms and littoral plants provide additional treatment. Such ponds are effective and require minimal maintenance, generally involving removal of nuisance species and cleaning of the "bleed down" structure. Oil skimmers will prevent the discharge of oils and greases from the site. The wet detention ponds have side slopes no steeper than a 4 to 1 horizontal to vertical angle and will be mulched or vegetated to prevent erosion. Dry retention facilities retain the "first flush" runoff and attenuate peak stormwater discharge. The water within the dry swale is filtered as it percolates down through the soil. Maintenance of dry swale systems requires mowing and removal of silt buildup. The design of the system provides that the post development peak rate of discharge will not exceed the pre-development peak rate of discharge for a 24 hour duration storm with a 25 year return frequency. The project will not cause a reduction in the flood conveyance capabilities provided by a floodway. The project will not result in flows and levels of adjacent streams, impoundments or other water courses being decreased so as to cause adverse impacts. The projects detention basins will provide the capacity for the specified treatment volume of stormwater within 72 hours following a storm event. The project is not located in and does not discharge directly to Class I or Class II waters, to Class III waters approved for shellfish harvesting, or to Outstanding Florida Waters. The receiving waters for the system are Boggy and Buckhead Branches, both Class III surface waters. Operation of the system will not cause or result in violation of state water quality standards for the receiving waters. The discharge from the system will meet Class III water standards. There is no evidence that operation of the system will induce pollution intrusion. The design and sequence of construction includes appropriate Best Management Practice provisions for erosion and sediment control, including silt barriers and hay bales. Such provisions are required by the SJRWMD permit conditions. Silt barriers will completely enclose the dredging locations. The bottoms of silt curtains will be buried and will extend 3.5 to 4 feet above the land surface. Slopes will be stabilized by sodding or seeding. The locations of the wet ponds and dry swales, nearby the roadways, will facilitate maintenance activities. Maintenance requirements are included within the SJRWMD permit conditions and are sufficient to ensure the proper operation of the facilities. Although the Petitioners asserted that prior violations of SJRWMD rules related to water quality discharge by the UNF indicate that the UNF is not capable of effectively and adequately operating and maintaining the system, the evidence establishes that the permit conditions are sufficient to provide for such operation and maintenance. The project also includes replacement of an existing culvert at a connection between Boggy and Buckhead Branches. The existing culvert is impounding water during the wet season. The replacement culvert will be installed at the connection floor elevation and will serve to restore the natural hydrology. The new culvert will also be substantially larger than the existing pipe, and can allow fish and wildlife passage under the road. In order to mitigate the impact of the project on wetland dependent and off-site aquatic species, the UNF has proposed to create a 6.3 acre freshwater forested wetland at a site contiguous to Buckhead Branch. The wetlands creation project includes 2.9 acres of submerged wetlands and 3.4 acres of transitional wetlands. Of the 6.3 acres, 4.1 acres of the created wetlands are designated to mitigate the adverse impacts related to the dredge and fill activities. The mitigation proposal constitutes a ratio of 2.7 acres of wetlands creation for every acre of wetland impact. The mitigation site is a low upland pine flatwood and mesic flatwood area surrounded on three sides by wetlands related to Buckhead Branch. The mitigation area will be scraped down to a suitable level and over-excavated by six inches. The elevation of the proposed wetland creation area is based upon water table data and surveying of the Buckhead Branch, located adjacent to the proposed mitigation area, which serves as the wetlands reference area. The UNF monitors surface and ground water elevation in the proposed mitigation area and in Buckhead Branch, and records rainfall amounts. The hydrology of the proposed wetland creation area is based upon the connections of the created wetlands with Buckhead Branch and is sufficient to assure an appropriate hydroperiod. The six inch over-excavation will receive muck soils removed from the impacted wetland areas. The subsurface soils in the wetland creation area are, because of the existing water table level, compatible with the wetland creation. The muck soil will naturally contain seeds and tubers of appropriate vegetation. Additionally, wetland trees, based upon trees in adjacent wetland areas, will be planted in the wetland creation. Prior to planting, the UNF will be required to submit an as-built survey demonstrating that the hydrology and elevation newly- created wetland is proper. The UNF proposal to monitor and maintain the created wetland includes physical and aerial examination of the site, which will be protected by a deeded conservation easement. The monitoring and maintenance plan will continue for three years. The mitigation effort must achieve a ground cover of not less than 80% to be considered successful. Nuisance species will comprise less than 10% of the site's vegetation, and excessive nuisance species will be removed. The UNF is required to periodically report the status of the site to the SJRWMD. The mitigation proposal is adequately detailed and sufficient to offset adverse impacts to wetlands resulting from construction and operation of the system and the dredge and fill project. The wetland creation permit conditions indicate that the wetlands will function as designed and approved by the SJRWMD. The wetland creation is greater in size than the impacted wetlands, will replace the habitat and function of the impacted wetlands and will offset the adverse impacts of the loss of existing wetlands. There will be no impact on any threatened or endangered animal species. The evidence that such species utilize impacted sites is limited. Existing utilization of the impacted site will be accommodated by the remaining wetlands and the created wetland mitigation area. There is no evidence that fish will be adversely affected by the project. Construction and operation of the system will not cause adverse changes in the habitat, abundance, diversity or food sources of threatened and endangered species or off-site aquatic and wetland dependent species. More than five years ago, a bald eagle, listed as endangered by the State of Florida, was observed perched on an upland tree in an area where a retention pond will be constructed. The eagle was not nesting or feeding at the time of observation. The closest known eagle's nest is more than four miles away from the site. None of the impacted area provides appropriate feeding ground for a bald eagle. Colonies of red-cockaded woodpeckers exist between one and one half to ten miles away from the UNF campus. Red- cockaded woodpeckers have been observed on the UNF campus but not in the vicinity of the areas to be impacted by the project. Red- cockaded woodpeckers habitat pine trees at least 50 years old. While the existing pine may provide red-cockaded woodpecker habitat in the future, the pine trees to be impacted by this project are not suitable habitat for red-cockaded woodpeckers at this time. There are no pines on the UNF campus which would currently provide suitable red-cockaded woodpecker habitat. Woodstorks have been sighted on the UNF campus, but not in the impacted area or the mitigation area. Woodstorks feed in areas dissimilar to the impacted areas, therefore there should be no impact on the species. Gopher tortoises have been observed on the UNF campus, but not in the impacted wetland areas or in the mitigation areas. There is no evidence that gopher tortoises would be impacted by this project. A number of animal species identified as wetland dependent have been observed on the campus. However, the evidence of actual utilization of impacted areas by such species is unclear as to frequency and manner of utilization. Such wetland-dependent species are capable of utilizing proximal habitat and will be absorbed by the unimpacted wetland acreage on the UNF campus. Further, the impact on potential habitat caused by the project will be effectively mitigated through the created wetland area. Five hooded pitcher plants are located within the wetland impact area and will be destroyed by construction activities. The hooded pitcher plant is listed by the State of Florida as a threatened species, however, the plant is common in wet areas throughout Duval, Clay, St. Johns and Nassau Counties. Because the muck soils removed from the area will contain seeds, roots and rhizomes from existing vegetation, the plants will likely reproduce in the created wetland area which will contain the muck soil removed during the permitted construction activity. There is no evidence that the dredge and fill project will adversely affect public health, safety and welfare. There are no significant secondary impacts resulting from the proposed project. The SJRWMD considered the environmental impacts expected to occur related to the construction of the roadways for which the permits are sought. In this case, the anticipated secondary impact of the project relates to the effect of automobiles on existing wildlife. The evidence does not establish that there will be such an impact. The road poses no obstacle to wildlife migration. The replacement of the existing culvert with a new culvert at the proper ground elevation may provide enhanced access for some wildlife. The cumulative impacts of the project include the potential expansion of the eastern connector which would require the crossing of Boggy Branch, and future building construction in the southeast portion of the UNF campus. There is no evidence that such impacts, which would require additional permitting, could not be offset with additional mitigation at such time as the permitting is sought.
Recommendation Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on June 11-12, 1991, in Jacksonville, Florida.
