The Issue The issues to be decided in this case are whether Respondents are liable for the violations charged in the NOV, whether Respondents should pay the penalties assessed in the NOV, and whether Respondents should be required to take the corrective actions demanded in the NOV.
Findings Of Fact The Department is the state agency with powers and duties related to the regulation of construction activities in wetlands and surface waters, including filling in wetlands. Respondents are individuals who own real property on Bayshore Road in North Fort Myers, Florida. Some confusion exists in the record about the street number for the property. It is alternately described as 11590, 11620, 11650, and 11850. This is partly due to the fact that the property consists of at least two recorded parcels. The actual location of the filled area is not disputed, nor is it disputed that Respondents own the property where the fill was placed. The property is adjacent to the Caloosahatchee River. It contains freshwater marsh wetlands dominated by Leather Fern. The Department conducted a site inspection of Respondents’ property and determined that Respondents had filled 0.96 acres of wetlands. The Department produced evidence that it incurred costs of $1,824.50 in this case. The corrective actions ordered in the NOV, which are designed to restore the wetlands that were filled, are reasonable.
The Issue The issue is whether Petitioner is entitled to an environmental resource permit for a surface water management system and the alteration of a wetland in connection with the construction of two warehouses, paved parking and loading areas, a detention pond, and enhancement of the remainder of the existing wetland. If not otherwise entitled to the permit, an additional issue is whether Petitioner is entitled to the permit through an exemption, waiver, or variance from the standard requirements for mitigation.
Findings Of Fact Background Petitioner Carlos M. Beruff, as Trustee under Florida Land Trust No. 22 dated March 30, 1989 (Petitioner), purchased 85 acres of land in Manatee County for $1.2 million in May 1989. (All acreages are approximate.) The east boundary of the 85-acre parcel consists of about 1700 feet of frontage along U.S. Route 301. One month after the purchase, Petitioner sold 70 of the 85 acres for $1.6 million. In the intervening month, Petitioner incurred no significant expenses for development or marketing, although the development and marketing expertise of Carlos Beruff facilitated the $1.6 million sale. The 70 acres that were sold included the frontage on U.S. Route 301. The 15 acres remaining after the sale comprise two tracts of 9 and 5.88 acres. In these cases, Petitioner seeks an environmental resource permit (ERP) for activities involving the 5.88-acre parcel (Site). The 9-acre parcel occupies the northwest corner of the 85-acre parcel. The Site, which was platted in 1911, is the only noncontiguous land constituting the 85-acre parcel; it is 450 feet south of the remainder of the 85-acre parcel. The sole parcel between the Site and the remainder of the 85- acre parcel was originally owned by Lowe's and is now owned by Cheetah Technologies (Cheetah Parcel). The 5.88-acre Site is subject to a road right-of-way of 0.32 acres in favor of the Cheetah Parcel. Of the remaining 5.56 acres, 4.66 acres are wetland and 0.9 acres are upland. The 0.9 acres of upland are subject to an access easement of 0.42 acres, also in favor of the Cheetah Parcel, so the net available upland acreage is only 0.48 acres. The Cheetah Parcel occupies the northwest corner of U.S. Route 301 and Saunders Road (also known as 63rd Avenue East). The Site is immediately west and south of the Cheetah Parcel and occupies the northeast corner of Saunders Road and 24th Street East (also known as Arlin Road). The Site is about 530 feet west of the intersection of U.S. Route 301 and Saunders Road. U.S. Route 301 is a major arterial, and Saunders Road is at least a major collector road. The Site contains about 600 feet of frontage along Saunders Road and 465 feet of frontage along 24th Street East. The Site is in unincorporated Manatee County roughly midway between downtown Bradenton and downtown Sarasota. Saunders Road crosses a north-south railroad line approximately one-half mile west of the Site and Bowlees Creek about 650 feet west of the railroad track. The 9-acre parcel still owned by Petitioner is about 350 feet north-south by 1250 feet east-west. The western boundary of the 9-acre parcel runs along the east side of the railroad line. Like the other parcels involved in this case, the 9-acre parcel drains into Bowlees Creek. The Site is in an area characterized by industrial land uses, including warehouses, a junkyard, an industrial center, and a bakery. A halfway house for persons recently released from prison is located one-quarter mile to the west of the Site. The Site is zoned HM (heavy manufacturing), which is a limited, and thus valuable, zoning category in Manatee County. Respondent has issued three relatively recent surface water management permits that are relevant to these cases: a 1986 permit for the development of the Cheetah Parcel (Cheetah Permit), a 1988 permit for the widening of Saunders Road from two to four lanes (Saunders Road Permit), and a 1989 permit for the construction of a commercial park north of the Site known as 301 Park of Commerce (301 Permit). Bowlees Creek runs from north to south, emptying into Sarasota Bay across from Longboat Key. Sarasota Bay is an Outstanding Florida Water. Bowlees Creek drains a nine square-mile basin, which is about 21-25 percent developed. The Bowlees Creek basin is an open drainage basin. Due to flooding problems, Manatee County has imposed special limitations upon development within the Bowlees Creek basin. Among these limitations is that the rate of post- development runoff must be less than the rate of pre- development runoff--up to 50 percent less, according to expert witnesses for both sides (Lawrence Weber, Tr. Vol. III, pp. 118-19; and Daryl Flatt, Tr. Vol. IV, p. 230). By stipulation, the Site is at the extreme eastern end of the Bowlees Creek basin. In fact, the Site may have historically drained into Bowlees Creek and will drain into Bowlees Creek after, as described below, the northwest window is added to the surface water management system. In 1993 or 1994, Petitioner began the process of developing the Site following the sale five years earlier of the larger 70-acre parcel. Mr. Beruff has been in the development business for 20 years. His career began in 1980 when Mr. Beruff became an employee for U.S. Homes and Modern Builders; he became self-employed in 1984. Mr. Beruff has developed seven commercial and ten residential developments. Application Process Deciding to pursue warehouse development for the Site, Petitioner initiated the development process by hiring an engineer and environmental consultant. With the assistance of these consultants, Petitioner prepared its application for an ERP. By application dated October 9, 1998, and filed November 13, 1998, Petitioner requested that Respondent issue an individual ERP for the construction on the Site of a surface water management system in connection with the construction of two warehouse buildings, paved parking and loading areas, and a detention pond, as well as the enhancement of the remainder of the existing wetland (Application). The Application states that the total building, parking, and loading areas would be 58,026 square feet and that wetlands constitute 3.37 acres of the 5.88-acre Site. The site plan attached to the Application shows a "wetland preservation & enhancement" area of 1.592 acres at the north end of the Site. To the south, toward Saunders Road, are two buildings with paved parking and loading areas. On the southwest corner is a "stormwater treatment & attenuation" area. After several discussions with Respondent's staff, Petitioner modified the proposed development. In its latest revision, the footprint of the proposed development would occupy 2.834 acres of wetland, leaving 1.826 acres of wetland. On November 13, 1998, Petitioner filed a Petition for Exemption, Waiver or Variance as to Mitigation Requirements, seeking an exemption, waiver, or variance from all laws requiring offsite mitigation or additional onsite mitigation for the portion of the wetland that would be destroyed by the proposed development. Drainage At present, the Site receives runoff from a total of 27 acres. The offsite contributors of runoff are the Cheetah Parcel and a segment of Saunders Road east of 21st Street East. These locations have drained into the Site for hundreds of years. In general, drainage raises two distinct issues: water quality and water quantity. For an open drainage basin, the issue of water quantity expresses itself primarily in runoff discharge rate, although historic basin storage is also an issue. As discussed in the Conclusions of Law, the Respondent's Basis of Review identifies different storm events to which applicants must design different components of surface water management systems. For water quantity, the system may release no more than the permitted discharge rate in the design storm, which is the 25-year, 24-hour storm event. At present, the design storm would produce about eight inches of rain, although the same design storm, due to a different model or modeling assumptions, produced 9.5 inches of rain at the time of the issuance of the permit for the Cheetah Parcel. (The practical effect of this change in the calculation of the design storm is that the quantitative capacity of the surface water management system of the Cheetah Parcel is nearly 20 percent greater than would be required today.) For water quality, the system must capture the first inch of runoff (sometimes only the first half-inch of runoff, depending on the type of system and receiving waterbody). In contrast to the relatively infrequent 25-year storm, approximately 90 percent of the storms in Respondent's jurisdiction produce no more than one inch of runoff. The underlying premise is that the first inch of runoff contains nearly all of the contaminants that will be flushed from impervious surfaces. The Cheetah surface water management system features a wetland and a retention pond along the north property line of the Site. The Cheetah pond and wetland attenuate runoff before allowing it to drain south onto the Site. The Cheetah surface water management system also includes a swale running north along 24th Street East to take runoff eventually to Bowlees Creek. The Saunders Road surface water management system discharging onto the Site consists largely of an underground, offline storage and attenuation system that stores excess runoff, as compared to pre-development rates, in lateral pipes off a weir. Nothing in the record suggests that the surface water management systems authorized by the Cheetah Permit or the Saunders Road Permit fail to provide reasonable assurance that the discharged runoff is of satisfactory water quality. Following their respective permits in 1986 and 1988, respectively, the rates of discharge of runoff from the Cheetah Parcel and Saunders Road were no greater post- development than they had been pre-development. The Cheetah Parcel post-development and pre-development discharge rates were both 10.6 cubic feet per second (cfs). The Saunders Road post-development and pre-development discharge rates were both 32.4 cfs. In issuing the 301 Permit, Respondent authorized the construction of a drainage system that would take runoff north along 24th Street East and then west, eventually emptying into Bowlees Creek. Conforming to the previous drainage system, the new system replaced an open ditch with underground stormwater pipes. Of particular relevance to the Site, two prominent features of the system authorized by the 301 Permit were windows in the vicinity of the southwest and northwest corners of the Site (Southwest Window and Northwest Window). A window is an opening in the wall of a hardened structure whose purpose includes drainage. The opening is constructed at a certain elevation and a certain size to allow specified volumes or rates of water to pass into the structure and then offsite. The 301 Permit authorized the construction of a swale along the southwest corner of the Site to direct runoff discharging from the Saunders Road system into the Southwest Window. This swale has been construed. However, several problems have precluded the construction of the Southwest Window, probably permanently. The most serious problem, from an engineering perspective, is the failure to lay the stormwater pipe along 24th Street East at the proper depth. The stormwater pipe was erroneously installed at an elevation of 15.32 feet National Geodetic Vertical Datum (NGVD), and the Southwest Window was to have been cut at a control elevation of 14.75 feet NGVD. The discharge elevation of the Saunders Road outlet precludes raising the control elevation of the Southwest Window sufficiently to allow gravity drainage into the stormwater pipe. Exacerbating the discrepancy among the as-built elevations of the three structures is what appears to be a design problem belatedly recognized by Respondent. Respondent is justifiably concerned that the Southwest Window, at a control elevation of 14.75 feet NGVD, would draw down the water elevation of the Site's wetland, which is at a wet season elevation of 16.5 feet NGVD (now actually 17 feet NGVD, possibly due to the absence of the Southwest Window). A third problem with the Southwest Window is that the southwest corner of the Site was not historically a point of discharge, so the Southwest Window would deprive the Site's wetland of runoff. Fortunately, neither the Southwest nor the Northwest Window is essential for the proper operation of the surface water management system of 301 Park of Commerce, which largely depends on a series of lakes for treatment and attenuation. The Northwest Window was to be at elevation 16.5 feet NGVD, and its construction would provide needed drainage for the Site. In general, the Northwest Window does not raise the same concerns as does the Southwest Window. The Northwest Window is in the vicinity of the historic point of discharge for the Site and replaces a ditch permitted for the Cheetah Parcel to take runoff north along 24th Street East. The Northwest Window would also alleviate a standing-water problem at the northwest corner of the Site. However, Manatee County, which controls the right- of-way on which the Northwest Window is located and is responsible for its construction and maintenance, has discovered that it lacks a sufficient property interest to access the Northwest Window. The County has since initiated the process by which it can obtain the necessary interest, and, once completed, the County will cut the Northwest Window into the existing structure. Due to the role of the Northwest Window in draining the runoff in the area, including the Site, the Application reincorporates the Northwest Window, as it should have been constructed pursuant to the 301 Permit. Although the Cheetah and Saunders Road permits resulted in greater runoff volume entering the Site, more importantly to area drainage, these permits did not result in greater runoff rates and or in a deterioration in runoff water quality. Likewise, the failure to construct the Southwest Window and Northwest Window is not especially relevant to area drainage, nor is the likely inability ever to construct the Southwest Window. Far more important to area drainage is the fact that Petitioner proposes that the Site, post-development, would produce a runoff rate of 10.6 cfs, as compared to a pre-development runoff rate of 7 cfs. A serious adverse impact to area drainage, the proposed activity increases the runoff rate by 50 percent in a floodprone, 80-percent builtout basin--a basin of such sensitivity that Manatee County is imposing a post-development requirement of substantially reduced runoff rates. The cumulative impacts of the proposed development, together with existing developments, would be to cause substantial flooding of the Bowlees Creek basin. Petitioner's expert attempted to show that the runoff from the Site, which is at the extreme eastern end of the Bowlees Creek basin, would be delayed sufficiently so as not to exacerbate flooding. Respondent's expert thoroughly discredited this testimony due, among other things, to its reliance upon obsolete data and an unrealistic limitation upon the assumption of the direction of travel of storms. Similarly, Petitioner failed to prove that the authorized discharge rate for the 301 Permit is 42 cfs. This assertion is most succinctly, though not exclusively, rebutted by the fact that the 42-inch pipe can only accommodate 18 cfs. Even if the 42-inch pipe could accommodate a substantially greater runoff rate, Petitioner's expert would have erroneously inferred a permitted discharge rate from this increased capacity without negating the possibility that other structures in the 301 surface water management system effectively reduced the rate or that oversized structures existed to accommodate higher runoff rates in storms greater than the design storm. In addition to increasing the runoff rate by 50 percent, Petitioner's proposal would also reduce the historic basin storage by over 40 percent. Displaced basin storage moves downstream, increasing flood levels from fixed storm events. At present, the Site provides 8.68 acre-feet of historic basin storage. The Application proposes to replace this storage with storage in the wetland and retention pond totaling only 4.9 acre-feet. The loss of 3.8 acre-feet of basin storage means that this additional volume of water would, post-development, travel down Bowlees Creek. A final drainage deficiency in Petitioner's proposal arises out of a berm's proposed outside of the Northwest Window. A one-foot bust in the survey of Petitioner's expert would have resulted in this berm preventing runoff from entering the Site from the Cheetah Parcel, as runoff presently does. Respondent's expert suggested several possible alternatives that might result in a permittable project with respect to post-development runoff rates (the record is silent as to the effect of these alternatives upon historic basin storage, although it would seem that they would add storage). Reducing the area of destroyed wetlands to one acre would probably reduce the excess of post-development runoff rate to 1-2 cfs. Petitioner could then obtain offsetting attenuation through a variety of means, such as by obtaining an easement to use the wetland on the Cheetah Parcel, constructing an attenuation pond on the 9-acre parcel, or constructing underground vaults in the filled area of the wetland on the Site. Wetlands Except for the road right-of-way, the Site is undeveloped and forested. The presence of 25-year-old red maples militates against attributing the transition from an herbaceous to a forested wetland to the failure to install the Northwest and Southwest windows. More likely, this transition to the sub-climax species of red maple and willow (in the absence of a cypress source) is due to the repression of fire on the Site. Experts for the opposing sides differed sharply in their biological assessments of the wetland. Petitioner's expert described a stressed wetland whose impenetrable thicket provided habitat only to a lone rat and swarm of mosquitoes. Respondent's expert described a robust wetland featuring a luxuriant overstory of red maple and Carolina willow; an rich understory of ferns, and diverse wildlife ranging from birds in the air (direct evidence); fish, snails, and tadpoles in a small pond (direct evidence); and squirrel and opossum (indirect evidence) scampering (indirect evidence) among the buttonbush, elderberry, and wax myrtle (direct evidence). Undoubtedly, the wetland has been stressed; approximately 30 percent of the wetland vegetation is Brazilian pepper, which is a nuisance exotic. However, the wetland is well hydrated. Issuance of the Cheetah Permit was predicated, in part, upon the rehydration of the wetland on the Site. With the issuance of the Cheetah Permit and especially the Saunders Road Permit, the quality of water entering the wetland has improved by a considerable amount. As already noted, added volumes of runoff are entering the wetland since the issuance of these two permits, although post-development runoff rates are the same as pre-development runoff rates. On balance, the wetland is functioning well in providing habitat and natural drainage functions. Giving due weight to the current condition of the wetland, the enhancement offered by Petitioner does not approach offsetting the loss of wetland area. In return for destroying 2.83 acres of the wetland, Petitioner proposed the enhancement of the remaining 1.83 acres by removing exotic species to no more than 10 percent of the total vegetation. The mitigation is plainly insufficient because of the level of functioning of the entire wetland at present. Additionally, Petitioner has failed to demonstrate that the Brazilian pepper, which is the major nuisance exotic occupying the Site, is evenly distributed; to the contrary, it is present mostly outside the wetland, along a berm just outside of the wetland. The lack of seedlings and old specimens suggests that the Brazilian pepper population may not be stable and may itself be stressed. Petitioner's failure to show that the remaining wetland area has more than 10 percent infestation or is likely to suffer additional infestation further undermines the effectiveness of the proposed mitigation. Respondent has never issued an ERP for a proposed activity involving the alteration of wetlands when the enhancement mitigation ratio is as low as .65:1, as Petitioner proposes. In general, Respondent requires higher mitigation ratios when proposals involve wetlands enhancement, rather than wetlands creation, because the wetlands to be enhanced are already functioning--in these cases, at a relatively high level. Although Petitioner has been unwilling to consider such alternatives, numerous alternatives exist for offsite mitigation or mitigation banking, if insufficient area exists for adequate onsite mitigation. Lastly, Petitioner devoted considerable effort at hearing to portraying Respondent's handling of the Application as flawed and unfair. However, the evidence does not support these assertions. Most strikingly, Respondent's staff treated the drainage windows inconsistently, to the benefit of Petitioner. They treated the Northwest Window as installed for the purpose of calculating the pre-development runoff discharge rate to Bowlees Creek. Until the Northwest Window is installed, the actual rate is even lower. This approach is justifiable because the Northwest Window will be installed at some point. On the other hand, Respondent's staff ignored the higher wetland elevation on the Site, presumably resulting from the absence of the Southwest Window. However, this approach, which benefits Petitioner in calculating wetland drawdown effects, is unjustifiable because the Southwest Window probably will never be installed. Petitioner's specific complaints of unfair treatment are unfounded. For example, Petitioner suggested that Respondent credited Lowe's with wetland acreage for the littoral shelf of its wetland, but did not do so with the wetland on the Site. However, Petitioner produced no evidence of similar slopes between the two shelves, without which comparability of biological function is impossible. Additionally, Petitioner ignored the possibility that, in the intervening 14 years, Respondent may have refined its approach to wetland mitigation. Although occurring at hearing, rather than in the application-review process, Respondent's willingness to enter into the stipulation that the Site presently drains into Bowlees Creek, despite recent data stating otherwise, was eminently fair to Petitioner. Absent this stipulation, Respondent would have been left with the formidable prospect of providing reasonable assurance concerning drainage into the floodprone Bowlees Creek when the post-development rate was 10.6 cfs and the pre-development rate was 0 cfs.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent deny Petitioner's application for an environmental resource permit and for an exemption, variance, or waiver. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2000. COPIES FURNISHED: S. W. Moore Tracey B. Starrett Brigham. Moore, Gaylord, Schuster, Merlin & Tobin, LLP 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237-6043 Mark F. Lapp Jack R. Pepper Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 E. D. "Sonny" Vergara Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should issue a Wetland Resource Permit (WRP), number 37-0281978-002-DF, to Blueprint 2000 for a project to widen Capital Circle (SR 263) in Tallahassee from just south of Orange Avenue to just south of Tennessee Street (US 90).
Findings Of Fact Blueprint 2000 is an intergovernmental agency created by Leon County and the City of Tallahassee under chapter 163, Part 1, Florida Statutes. Blueprint has undertaken a project to widen a segment of Capital Circle in Tallahassee between Interstate 10 and the Tallahassee Regional Airport, specifically from just south of Orange Avenue to just south of Tennessee Street (US 90), from two to six travel lanes. Gum Swamp is near the north end of Blueprint’s proposed project. It is divided by Capital Circle, with most of the swamp located east of the road. Petitioner, the Gibby Family Trust, owns property in the smaller part of Gum Swamp west of Capital Circle, specifically in the southwest corner of the intersection of Capital Circle and Gum Road. Petitioner also owns a larger parcel of property a little farther west and north of Gum Swamp, north of Gum Road, that has frontage on the south side of Tennessee Street. Petitioner’s primary concern about the project is that it will cause flooding and worsen water quality in the part of Gum Swamp where Petitioner owns property. On August 28, 2007, Blueprint 2000 applied to DEP for a WRP for the proposed project. On September 18, 2007, Blueprint applied to DEP to be approved to use General Permit for New Stormwater Discharge Facilities (the SWGP) for the treatment of stormwater runoff from the proposed project. On October 18, 2007, DEP approved Blueprint’s use of the SWGP for the project. The SWGP approved the water quality treatment of stormwater from the project area at the existing Martha Wellman Pond, which was constructed as part of the previous improvements to Capital Circle from Interstate 10 south to U.S. 90, and at the following stormwater treatment ponds to be constructed: Broadmoor pond; the four Delta ponds; Nina pond; and Orange pond. During the process of DEP’s requests for additional information on Blueprint’s WRP application and Blueprint’s responses, Leon County asked Blueprint to add two stormwater ponds to the project--the Gum Road pond, which is just north of Gum Road near the Gum Road floodplain compensation area, and the Swamp Fox pond at the intersection of Capital Circle and Swamp Fox Road, which is south of Gum Swamp--to meet Leon County’s stormwater permitting requirements. Blueprint asked DEP whether these additions would require a modification of the stormwater permit. DEP staff determined that no modification to Blueprint’s SWGP was possible (since it was a general permit) or necessary (since the two ponds would not increase stormwater runoff and added to the water quality treatment already determined to be sufficient for the project). Blueprint’s WRP application was modified to add the Gum Road and Swamp Fox ponds. On April 29, 2010, DEP issued its notice of intent to approve Blueprint’s WRP application. Petitioner requested a hearing, to include consideration of Petitioner’s opposition to proposed wetland impact mitigation at a site just north of Gum Road, near Petitioner’s larger parcel of property north of Gum Road and south of Tennessee Street, because the proposed mitigation would require the imposition of a conservation easement, which would not allow the use of the area for floodplain compensation for development on Petitioner’s larger parcel. In response to Petitioner’s opposition to the Gum Road mitigation site, Blueprint informed DEP on September 15, 2010, that Blueprint would provide wetland impact mitigation at the Broadmoor mitigation area in lieu of the Gum Road mitigation area. Blueprint’s WRP application, as amended, indicated that the project would directly impact 6.22 acres of jurisdictional wetlands in six different locations--0.58 from dredging, 0.02 acres from shading, and 5.62 acres from filling. These impacts were to be offset by mitigation in the same drainage basin--the Lake Munson basin. The mitigation proposed by Blueprint would include the creation of approximately 25.42 acres of forested and transitional wetland habitat at the Broadmoor and Delta mitigation areas. Further, to compensate for impacts to a 1.1-acre conservation area adjacent to the roadway in the western Gum Swamp (the Zenz mitigation area), Blueprint will record a conservation easement over an 8.6-acre tract of forested wetlands adjacent to the roadway. In all, the mitigation plan will provide 6.79 functional units of gain within the Lake Munson drainage basin and would more than offset the 4.53 units of functional loss in the same drainage basin, as calculated using the Uniform Mitigation Assessment Methodology (UMAM). Blueprint provided reasonable assurances that its proposed project will not result in water quality violations but, rather, will improve water quality. As indicated, the Gum Road and Swamp Fox stormwater treatment ponds add to the water quality treatment provided and already approved in the SWGP. In addition, the WRP provides for four “stormceptors” in the segment of the project in Gum Swamp. A stormceptor collects runoff from the road way and filters it by use of a chamber system that removes pollutants by allowing metals and sediments to settle to the bottom and oils to float to the top of the system and discharges the filtered water through the middle of the chamber, free of most light oils, heavy metals, and sediment. The existing roadway does not have stormceptors, and they were not included in Blueprint’s SWGP application, which was approved without them. Blueprint proved that the proposed project will not adversely affect the public health, safety, or welfare or the property of others--specifically, with respect to water quantity, flooding, and transportation. Blueprint proved that the quantity of water discharging from the project will not increase and that the project will not cause flooding. Detailed analysis in accordance with Florida Department of Transportation regulations demonstrate that post-development discharges of stormwater during design storm events will not exceed pre-development discharges. As for flooding, Blueprint proposes to compensate for all fill required for the project by removing an equal amount of soil from the Gum Road floodplain compensation area. In addition, detailed modeling using regional and site-specific data showed that there will be no change in flood elevations as a result of the project. Adding travel lanes to Capital Circle, as proposed, will improve traffic flow and make driving in the project area safer. It also will improve an intermodal link between Interstate 10 and the Tallahassee Regional Airport. Blueprint proved that the proposed project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Loss of existing opportunities for wading birds, including wood storks, to forage in roadside ditches will be replaced by new, comparable foraging opportunities. Loss of existing habitat will be mitigated by creation of four times as much habitat. Appropriate measures will be taken to protect and conserve the eastern indigo snake. In addition, a single large box culvert under Capital Circle in Gum Swamp near Petitioner’s smaller parcel will be replaced by three culvert/wildlife crossings, one in the location of the existing box culvert, and the other two spaced out along the road to the south. The new culverts/wildlife crossings will help conserve wildlife utilizing habitat in the vicinity of Gum Swamp. Blueprint proved that the proposed project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. Post-development discharge rates will not exceed pre-development discharge rates. Appropriate measures will be taken to prevent erosion during construction. Bridging Gum Creek in lieu of the existing culverts will improve the creek’s flow. The new culverts/wildlife crossings in Gum Swamp will maintain or improve flow between the eastern and western parts of the swamp. In general, the flow of water in the project area will be maintained. The proposed project is permanent in nature. Some impacts due to construction would be temporary, and these would be minimized by use of best management practices. The proposed project will not adversely affect significant historical or archaeological resources under the provisions of section 267.061. Blueprint’s UMAM analysis demonstrated that the current condition and relative value of the functions being performed by areas affected by the proposed project will be maintained or improved. Blueprint provided reasonable assurances that its proposed project will not be contrary to the public interest. Because Blueprint proposes to mitigate for wetland impacts in the same drainage basin as the impacts, and the proposed mitigation offsets the impacts, there will be no cumulative impacts to wetlands. Petitioner contends that the project will flood and adversely affect water quality on its property because runoff from Capital Circle will be directed to the west of the roadway into Gum Swamp. Actually, runoff from the northernmost stormceptor will be directed to the east of Capital Circle. Runoff from the other three stormceptors will discharge to the west of Capital Circle but will enter Gum Swamp to the south and down-gradient of Petitioner’s property and will flow away from Petitioner’s property. In addition, the proposed culverts/wildlife crossings will allow the water from both sides of the road to mix and equalize. Blueprint proved that water quality in the vicinity of Petitioner’s property will not worsen but, rather, will improve. Petitioner presented the testimony of a stormwater engineer who questioned whether flooding of Petitioner’s property will occur notwithstanding Blueprint’s floodplain compensation. During the review process, Petitioner’s engineer took the position that detailed modeling would be needed to answer the question. He was told that modeling was being undertaken and that the results would be presented to him after review by Blueprint’s engineers. Until shortly before the final hearing, Petitioner’s engineer was not aware that the necessary modeling had been done and that showed no flooding would occur. Periodic flooding occurs on Petitioner’s smaller parcel in the Gum Swamp in its current and pre-existing condition because it is in the 100-year floodplain. In addition, a “backwater” condition has been created in the past by improper maintenance of a Leon County control structure that is supposed to allow excess water to flow out of Gum Swamp into flow-ways leading south, eventually to Lake Munson. Proper maintenance of the control structure will help alleviate flooding. In addition, the project would alleviate flooding by bridging Gum Creek, which flows around the southern edge of Gum Swamp and into a canal system leading to Lake Munson. More water would be able to flow through the bridge openings than can flow through the existing culverts under Capital Circle at Gum Creek. Petitioner contends that the WRP cannot be issued as proposed because it conflicts with engineering drawings submitted by Blueprint in support of its use of the SWGP, which indicate that (untreated) stormwater from Capital Circle in the Gum Swamp will run off to the east. The SWGP is a separate permit that addresses water quality, not water quantity. Regardless of the conflicts in the engineering drawings, the SWGP provides some of the water quality assurances for the WRP. The SWGP does not require the WRP to provide that all runoff from Capital Circle in the vicinity of Gum Swamp be discharged to the east (into the larger part of Gum Swamp to the east of the road), as indicated in the SWGP engineering drawings. Issues as to whether construction in accordance with Blueprint’s WRP will result in compliance with the SWGP are not part of this WRP proceeding. Petitioner contends that Blueprint’s WRP application is void because it revises a void original application. Actually, DEP stamped Blueprint’s original application “void” to avoid confusion when it was replaced by an amended application that updated wetland impact acreages and changed the name of the applicant’s agent. The original application was not void. Petitioner contends that the SWGP and WRP had to be considered together as an application for an ERP. However, Blueprint’s WRP application was deemed complete on July 18, 2008, before ERPs became mandatory. Blueprint did not request that its applications be reviewed together, either as an application for an ERP or, under rule 62-25.060(1), as an application for the “construction of a new stormwater discharge facility [that] requires . . . a dredge or fill permit ” DEP staff “consolidated” (or “merged”) the SWGP and WRP application files for purposes of review of the WRP application as to water quality issues. In its proposed recommended order, Petitioner requested the addition of a condition to Blueprint’s WRP providing essentially that all construction approved by both the SWGP and the WRP must be performed “simultaneously, concurrently and not in phases or segments.” Petitioner also requests strict compliance with the added condition and no future modification. It is clear that Blueprint’s WRP does not approve a phased or segmented project and that Blueprint must comply with its WRP. There is no need for an additional condition as to those matters. However, it is appropriate to add a condition to the WRP to make it clear that all new stormwater facilities approved by Blueprint’s SWGP, together with the additional Gum Road and Swamp Fox stormwater ponds, and the stormceptors in the Gum Swamp segment directing runoff away from Petitioner’s property, must be constructed simultaneously with the rest of the project. DEP’s engineer testified that there should be a condition that “would not allow any other changes to occur.” But the evidence does not support the need for a condition that would prohibit any future modification of the WRP, however minor. Any major modification would give Petitioner a point of entry to initiate a separate proceeding to challenge the modification. Blueprint contends that Petitioner did not prove ownership of the property alleged to be affected by Blueprint’s WRP and did not prove an injury-in-fact. Although ownership deeds were not introduced in evidence, witnesses for Blueprint and DEP conceded Petitioner’s ownership interests. There also was ample evidence that Blueprint’s WRP reasonably could be expected to affect Petitioner’s substantial interests even if an adverse effect on them was not proven.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Blueprint’s WRP application, number 37- 0281978-002-DF, be granted and the WRP issued with the additional condition that all new stormwater facilities approved by Blueprint’s SWGP, together with the additional Gum Road and Swamp Fox stormwater ponds and the stormceptors in the Gum Swamp segment directing runoff away from Petitioner’s property, be constructed simultaneously with the rest of the project. DONE AND ENTERED this 11th day of April, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2011. COPIES FURNISHED: Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Thomas Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Sidney L. Matthew, Esquire Post Office Box 1754 Tallahassee, Florida 32302 Debra Schiro Blue Print 2000 1311 Executive Center Drive Tallahassee, Florida 32301 F. Joseph Ullo, Esquire Lewis, Longman & Walker, P.A. 245 Riverside Avenue, Suite 150 Jacksonville, Florida 32202 Edwin A. Steinmeyer, Esquire Lewis, Longman & Walker, P.A. 2600 Centennial Place, Suite 100 Tallahassee, Florida 32301 Ronald Woodrow Hoenstine, III, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact SFWMD is a public corporation and local sponsor for the federally authorized Central and Southern Florida Flood Control Project. As part of its duties as local sponsor, SFWMD operates eight pumping stations and six other structures all of which discharge into Lake Okeechobee. On August 26, 1977, SFWMD filed an application with DER for an operating permit for its inflow points into Lake Okeechobee. By mutual agreement, SFWMD and DER determined that there was insufficient data available to determine whether SFWMD qualified for an operating permit, therefore, DER proposed issuing a TOP. On November 22, 1978, DER issued its notice of intent to issue a TOP to SFWMD for its inflow points into Lake Okeechobee. Among the conditions contained in the TOP is that the permit will be effective for thirty (30) months. Petitioners complain that Lake Okeechobee is being environmentally damaged by the drainage into Lake Okeechobee of waters from surrounding agriculture and dairy farming areas. This, say the Petitioners, is causing the eutrophication or damaging enrichment of the Lake by the addition of chemical elements above their natural levels in that environment. DER and SFWMD contend that at least thirty (30) months is required to complete the testing and observation of the Lake and to make long-range plans for reduction of drainage into Lake Okeechobee and to develop necessary management alternatives to accomplish that goal. The proposed TOP provides a temporal framework. Within thirty (30) days of the issuance of the permit, SFWMD is required to present to DER a program for interim actions which will reduce nutrient loading during the time of the permit. Within 120 days of the issuance of the permit, SFWMD is required to submit for approval by DER a plan of study for determining the probable impacts of management alternatives for reducing the nutrient loading into Lake Okeechobee. Within twenty-four (24) months of the issuance of the permit, SFWMD is required to submit to DER an analysis of the impacts of each reasonable management alternative which will reduce the nutrient loading into Lake Okeechobee. During two successive rainy seasons SFWMD is required to do extensive chemical testing on site. After SFWMD submits its analysis of the impacts of management alternatives, DER has six months to review the data submitted and approve a schedule for implementing a plan to reduce nutrient loadings into Lake Okeechobee. Petitioners have submitted seven (7) Proposed Findings of Fact, five of which are hereby adopted in this Recommended Order: Lake Okeechobee is in a eutrophic state and getting worse as a result of man's activities. Both state agencies charged with respon- sibility for protecting Lake Okeechobee have long recognized that the Lake is in a eutrophic state and is in need of relief. Both the DER and the SFWMD have recognized that backpumping contributes significantly to eutrophication. Since 1975, DER and SFWMD have known that backpumping is one cultural activity that should be and could be stopped or substan- tially reduced. (This proposed Finding of Fact was numbered 6 in Petitioners' pleading.) The durational provision of the TOP is linked to the addi- tional time the DER and SFWMD claim it will take to study ways to stop backpumping. Petitioners' Proposed Findings of Fact numbers 5 and 7 are hereby rejected for the following reasons. First Petitioners request a finding that "the state agencies have done nothing to reduce the amount of bad water backpumped into Lake Okeechobee." In fact DER and SFWMD have proposed the TOP with its temporal frame work and requirements of interim actions for reduction of backpumping. Petitioners also propose as a finding of fact that "the TOP's durational provision as drafted is unreasonable and arbitrary in not assuring immediate reductions in backpumping and therefore, should be redrafted to require such action." Petitioners have not supported this contention with substantial, competent evidence. In fact, the TOP provides that a plan for the reduction of nutrient loading be presented within thirty (30) days of the issuance of the TOP. Furthermore, the proposed finding of fact is outside the scope of the issues framed by the pleadings. The issue is whether the thirty (30) month durational provision of the TOP should be reduced to twelve (12) months and not whether the TOP provides for immediate reductions in backpumping. The reason for the issuance of the TOP in lieu of an operating permit is to allow SFWMD time to gather data, to assess impacts and to develop management alternatives for the control of nutrient and pollutant loadings. Although some biological and chemical data already exist, much of the information requested of SFWMD under the TOP is currently unavailable. Specifically, the TOP requires that numerical nutrient limits be established for each discharge point and that specific management alternatives be developed. Currently available data on backpumping reduction does not specifically detail how much reduction is feasible nor what alternatives are soundest environmentally. Existing reports dealing with backpumping into Lake Okeechobee are not specific enough to support presently implementable management alternatives. Petitioners introduced no evidence to establish that the budgetary or manpower constraints with which SFWMD must deal would allow a reduction of the durational provision of the TOP from thirty (30) months to twelve (12) months. SFWMD's witnesses, however, established that if SFWMD were required to complete the study within one year, it would be economically impossible unless money and personnel earmarked for other important projects were tapped. Not only would the instant studies suffer a decline in quality but other equally pressing environmental studies would be jeopardized.
The Issue The central issue in this case is whether Petitioner's request to modify permit no. 5601095728 should be approved or denied.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Petitioner, William Schulman, as trustee, is the owner of a parcel of real property consisting of approximately ten acres located on Hutchinson Island in St. Lucie County, Florida. On July 3, 1986, Petitioner was issued permit no. 5601095728 and became authorized to fill 1.5 acres of impacted wetlands in accordance with specifications and drawings which had been approved by the Department. Petitioner was required to provide mitigation in connection with the permit which included: the installation of culverts to allow tidal circulation to adjacent wetlands; scraping down a .5 acre area and planting smooth cordgrass; and dredging an area approximately sixty feet wide to allow an access to the Indian River. Petitioner has performed the above-described mitigation. The permit also required Petitioner to execute and record a Conservation Easement which included the .5 acre to be scraped and planted with cordgrass. This easement has not been recorded in accordance with the permit guidelines. Instead, Petitioner sought to modify the permit to allow an additional 1.5 - 2.0 acres to be filled. This proposed area encompassed the smooth cordgrass and an area of mangroves which were to be part of the conservation easement. By letter dated July 10, 1987, Petitioner provided drawings to the Department to further identify the area subject to the requested modification. The proposed modification would result in the permanent loss of white mangrove and cordgrass marsh. This marsh is connected to Class II waters (Indian River) via the dredged opening described in paragraph 2. Petitioner's ten acre parcel is bounded to the north by the platted Windmill Village subdivision; to the east is a commercial area which fronts on SR A-1-A; to the southwest of the property is a diked area known as Impoundment 12; to the west is a man-made lake referred to as "Black's Lake" at the hearing; and further to the west is the Indian River. As part of the original mitigation, Petitioner dredged a sixty foot opening connecting Black's Lake to the Indian River. The culverts required by the original mitigation connected Black's Lake to Impoundment 12, Petitioner's parcel to Black's Lake, and Impoundment 12 to the Indian River. As mitigation for the modification sought, Petitioner has proposed to provide four additional culverts to connect Impoundment 12 with Black's Lake. The record in this cause is unclear as to the present ownership of Impoundment Further, no owner has given consent to the proposed installation of additional culverts. The mitigation proposed for Impoundment 12 is not on Petitioner's property. As additional mitigation for the modification, Petitioner has proposed to provide two culverts which would connect a ditch on Petitioner's property to Black's Lake. On September 4, 1987, Petitioner provided materials from the St. Lucie County Mosquito Control District to the Department in support of the requested modification. The information suggested that with the installation of additional culverts, the tidal activity within Impoundment 12 would be improved and would thereby eliminate most of the mosquito breeding within that area. On October 14, 1987, the Department notified Petitioner of its intent to deny the modification to permit no. 5601095728. Thereafter, Petitioner timely filed for a formal review and these proceedings resulted. By stipulation, the parties agreed that the Department has jurisdiction of the project and the proposed modification to the permit. The proposed mitigation seeks to increase tidal exchange within Impoundment 12. Petitioner has not offered evidence to illustrate how the mitigation would directly benefit Petitioner's property. The tidal replication in Black's Lake is approximately 90 percent of that within the Indian River. The tidal replication within Impoundment 12 is approximately 60 percent of that within Black's Lake. Petitioner anticipates that the addition of culverts connecting Black's Lake to Impoundment 12 would increase the tidal exchange to the impoundment. Impoundment 12 consists of approximately 120 acres. Due to a dike which divides the property, only 80 + or - acres would be affected by the proposed mitigation. To effect 100 percent tidal replication within Impoundment 12 the dike separating it from the Indian River to the west would have to be removed. Since that solution is highly unlikely, authorities have sought to achieve tidal exchange via 40' culverts which are 30 inches in diameter and which have been placed to breech the dikes surrounding the impoundment. The most desirable locations for these culverts would be directly connecting Impoundment 12 to the river. That is not Petitioner's proposal. Petitioner proposes to connect Impoundment 12 with additional culverts to Black's Lake. The opening to the river from the lake would not be increased. Consequently, it is unlikely the replication within the lake will increase. The sole objective of Petitioner's proposed mitigation would simply cause more water to tidally flow from the lake to Impoundment 12. Increased flow to Impoundment 12 would enhance the likelihood of achieving tidal inundation which would make mosquito breeding less frequent. While it is expected that the Mosquito Control District would have to continue applying larvicide to Impoundment 12, its use may be less often. Optimally, tidal inundation would occur at least once a week. Currently, Impoundment 12 receives this desired inundation only during the fall season when the waters are high enough to flood the remote areas. Increasing the number of culverts would also increase the points of access and would allow the water to move more slowly through the openings. While there is no evidence to establish the locations for the placement of the proposed culverts, in theory, the placement would be to maximize the tidal exchange. A slower exchange through the culverts would benefit organisms moving through the system. The slower rate would also enhance the use of the passages by fish. To be lost by the modification are .5 acre of smooth cordgrass and 1.25 - 1.50 acres of mature, functioning mangroves. The mangroves are predominantly of the white variety with some reds scattered. They are approximately 20 feet in height. If allowed to remain undeveloped, it is anticipated that the cordgrass area will aid in the recruitment of additional mangroves. Mangroves provide several benefits to estuarine systems. The leaf litter is a primary source of food for organisms in the lower end of the food chain such as fish and crabs. Fish, birds and mammals use mangroves for cover from predators. Birds also use the mangroves for perching and nesting and feed on insects and crabs associated with the trees. Mangroves in Impoundment 12 and the Petitioner's property (which will be lost by the modification) currently provide these benefits. It has not been demonstrated that the increased tidal flow to Impoundment 12 will quantitatively improve the benefits offered by mangroves to the existing system. Smooth cordgrass is a food source for birds, fish and mammals. Not only do organisms feed on the cordgrass, but they also feed on the leaves and seeds of the associated growth of spike rush and fungus. Mammals use the cordgrass for cover and some birds nest there. The following listed birds have been identified on Petitioner's property and Impoundment 12: snowy egret and little blue heron, which are species of local concern, and the brown pelican which is on the federal list of endangered species. Also observed at the location was the roseate spoonbill. Mammals identified on the Petitioner's property included raccoon, marsh rabbit and rat. The loss of the Petitioner's mangroves and cordgrass will decrease the habitat area currently used by mammals, fish and birds. Moreover, the mangrove population on Hutchinson Island is on the decline. Wetland areas have been decreasing due to development over the last 20 years. Numerous dredge and fill projects previously permitted by the Department have allowed filling of mangrove areas. Fish currently inhabiting the area which are expected to be adversely affected by the loss of the mangroves and ditch area include: snook (a species of special concern), tarpon, mojarra, and striped mullet. The increased water flow to Impoundment 12 does not offset this loss. Windmill Village By The Sea Homeowners Association, Inc., is a nonprofit corporation consisting of property owners occupying approximately 46 duplexes to the north of Petitioner's property. The 13 individual intervenors (Sophie Holler, Jackson and Mildred Gray, Terry and Norine Young, Einer Nielsen, Richard and Alphild Chase, Jack and Pat Donohue, and Robert and Lynn Chandler) are homeowners on Aqua Ra Drive north of and contiguous to Petitioner's property.
Findings Of Fact Petitioners in this proceeding challenge the validity of one of the Department of Environmental Regulation's ("DER") Class III water quality standards contained in Rule 17-3.121(7), Florida Administrative Code. This rule, commonly known as the "Biological Integrity Rule," reads as follows: Biological Integrity--the Shannon- Weaver Diversity Index of benthic macroinvertebrates shall not be reduced to less than 75 percent of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and, in predominantly fresh waters, collected and composited from a minimum of three Hester-Dendy type artificial substrate samplers of 0.10 to 0.15 meters squared area each, incubated for a period of four weeks; and, in predominantly marine waters, collected and composited from a minimal of three natural substrate samples, taken with Ponar type samplers with minimum sampling area of 225 square centimeters. Petitioners challenge this rule as a result of DER's intended denial of an application by Dade County for a permit to renourish the beach at Key Biscayne. DER's decision not to issue the beach renourishment permit was based in part upon its conclusion that there existed an expected violation of the Biological Integrity Rule as a result of the proposed beach renourishment. Whether or not the permit should be granted is an issue currently pending in another DOAH proceeding, Dade County Department of Environmental Resources Management, et al. v. State of Florida, Department of Environmental Regulation, DOAH Case No. 80-2201. Petitioners contend that Rule 17-3.121(7), Florida Administrative Code, is an invalid exercise of delegated legislative authority because: It fails to accomplish the purpose of the enabling legislation in that it contains no information as to where it is to be applied; It is incapable of consistent and objective application, and thus vests unbridled discretion in the DER staff; It is too vague and indefinite to determine whether it conforms to the statutory limitation on DER's authority; and It purports to but does not measure environmental integrity or environmental quality. The project for which Petitioners have applied for a permit requires the placement of fill on the beach at Key Biscayne in an area which extends landward from a point referred to as the 'design toe of fill." The permit application on file requests permission from DER to place fill material up to the design toe of fill. According to the permit application, it will take approximately two years after the initial placement of sand in the project area for that sand to reach the design toe of fill. There is no information contained in the original permit application regarding the location of the fill as it is initially placed within the project area, nor did DER request any additional information on that subject. The parties have stipulated that 45 acres of sea grass will ultimately be covered by fill. This area represents all the sea grass acreage landward of the design toe of fill, not just the acreage of sea grass which will be covered during the initial placement of fill within the project area. DER has no written policy establishing where the Biological Integrity Rule is to be applied. The record in this proceeding contains differing opinions from members of the DER staff concerning where the rule should be applied in order to determine whether a given project complies with the requirements of the rule. These explanations vary from applying the requirements of the rule within the area to be dredged or filled, to applying the rule outside the fill area, to applying the rule immediately adjacent to the fill area, to determining where the rule should be applied on a case-by-case basis. There is nothing in the record in this proceeding in the form of agency "orders" or any other form of agency "action" to indicate any prior DER interpretation of where the parameters of the Biological Integrity Rule are to be applied and measured. The rule uses the Shannon-Weaver Diversity Index of benthic macroinvertebrates as a measure in order to regulate the biological quality of a water body. The regulatory aspect of the rule depends upon some change in the existing biological community. If the index is reduced by more than 25 percent, a violation of the rule has occurred. The index is a function of two factors: the number of species of organisms in a given sample, and the number of individuals of each species in a sample. The higher the number of species in a given sample, and the more even the number of individuals of each species, the higher the index will be. The opposite is also true. If the number of species or the evenness of numbers of individuals among species is reduced, then the index decreases. The two factors are combined to arrive at the index. Naturally, these are only two of a vast number of factors actually present in the environment, but when taken together they give an accurate indication of existing water quality. Although this index does not reveal a number or these factors, such as existing biomass, types of species present in a sample, and the quality of those species, it is the most widely used scientifically valid single measure of environmental quality available. DER has had many years of experience with this index, and uses it in its routine monitoring program. In fact, this index is recommended for use in such programs by the Federal Environmental Protection Agency. The formula for the Shannon-Weaver index is found in Rule 17-3.021(23), Florida Administrative Code. Although the rule containing the formula for the index was not specifically challenged in the Petition filed in this cause, it bears mentioning here because the formula as published in the Florida Administrative Code, contains so many typographical errors as to make the definition of the formula meaningless. However, the record in this proceeding establishes that the Shannon-Weaver Diversity Index is so commonly known, accepted and utilized in the scientific community as to make the proper parameters for its application easily ascertainable. Thus, because the definition of the formula was not specifically challenged in this petition, and additionally because the proper definition of the index is so widely known and easily ascertainable, inaccuracies contained in DER's published definition of the index are harmless insofar as this proceeding is concerned.
Findings Of Fact On March 30, 1978, Lee County applied to the Department for permits pursuant to Chapters 253 and 403, Florida Statutes, to improve the existing Daniels Road in Lee County, Florida, from a two lane unimproved facility to a two lane paved road. The project site is located in southeastern Lee County, Florida, and crosses Six Mile Cypress Swamp. The proposed improvement would require excavation of material from submerged lands of waters of the state to remove a part of the existing dirt roadbed, placing of fill material onto submerged lands of waters of the state to widen the existing roadbed, and construction of two concrete bridges and two variable crest weirs. After receipt of the application, the Department reviewed the application, and, after consultation with Lee County officials, recommended issuance of the requested permit subject to the following conditions: Elimination of a proposed bicycle path; Deletion of a proposed spreader ditch and the dredging necessary for that ditch; Formulation and submission to the Depart- ment by Lee County of an acceptable management plan and schedule for maintaining water levels and indigenous swamp communities within the swamp; Organization of a Melaleuca Control Committee, together with preparation and implementation of a program to eradicate melaleuca within the right- of-way; and Revegetation of willows in the construction area. In their Amended Petition, Petitioners contest the proposed issuance of the requested permit on grounds that the permit condition requiring development of an acceptable water management plan should be accomplished prior to issuance of the permit; that the long range environmental impact of the proposed project has not been assessed; that the application does not contain information sufficient to give reasonable assurances that it will no result in deterioration of water quality; that insufficient information has been provided to demonstrate that the project will not have an adverse long-range impact on the conservation of fish, marine and wildlife, or other natural resources; that the aquifer recharge area adjacent to the proposed project will be substantially reduced; that sheet flow of overland water will be irretrievably altered; that land uses surrounding the Six Mile Cypress Swamp will contribute to deteriorating water quality; that elimination of the proposed bicycle path would deny Petitioners the right to utilize pedestrian, energy conserving and/or non-polluting transportation; and that the health and welfare of the Florida panther will be threatened by construction in the Six Mile Cypress Swamp which serves as habitat for this endangered species. Petitioners allege in their Amended Petition that their substantial interests would be affected ". . . in that Petitioner Joseph H. Burgess, a resident of Daniels Road, may suffer from downstream flooding as a result of issuing this permit." The Amended Petition alleged that Petitioner, Sierra Club - Calusa Group would be substantially affected by the proposed agency action in that they would ". . . be deprived of an area utilized for nature study . . .," in that the project would ". . . seriously impair the group's ability to study bird life and enjoy the natural scenic beauty of a presently relatively undisturbed area. . . ." The Amended Petition also alleged that Petitioners, Mary Ann Wallace and Joseph H. Burgess, would be substantially affected ". . . as nearby residents, who will be denied the right to enjoy a proposed regional park on the south side of Daniels Road in the Six Mile Cypress Swamp as a direct result of issuing this permit." Neither Joseph H. Burgess, Ellen Peterson, nor any representative testifying on behalf of Sierra Club - Calusa Group appeared or testified at the final hearing in this cause. The only named petitioners appearing and testifying at the final hearing were Mary Ann Wallace and Thomas Geary. Neither of these petitioners offered any testimony to establish that they owned property in Lee County, Florida, that they used any of the waters or other natural resources in the area of the Six Mile Cypress Swamp for nature study, recreation or other purpose, or that they would personally be injured or otherwise affected by issuance of the requested permit or the alleged environmental impacts arising therefrom. At the conclusion of Petitioners' case, the Department and Lee County moved to dismiss the Amended petition on grounds that Petitioners had failed to establish that their substantial interests would be affected by the proposed agency action as required by Section 120.57, Florida Statutes, which motions were granted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered by the State of Florida, Department of Environmental Regulation, dismissing the Amended Petition in this cause. DONE AND ENTERED this 27th day of February 1979 in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February 1979. COPIES FURNISHED: Isaac Anderson, Esquire 2115 Main Street Suites A and B Fort Myers, Florida 33901 Ray Allen, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Thomas M. Brondstetter, Esquire Assistant Lee County Attorney Post Office Box 398 Fort Myers, Florida 33902 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ELLEN PETERSON, et al., Petitioners, vs. CASE NO. 78-1467 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION and LEE COUNTY BOARD OF COUNTY COMMISSIONERS, Respondents. /
Findings Of Fact Based upon the stipulations entered into the record, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The parties: The Petitioners, Buck Flowers and Ray Thornton, are commercial fishermen doing business within the State of Florida. If enacted, the proposed rules would substantially affect their business interests. The Petitioner, Organized Fishermen of Florida, Inc., is an association of commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants, and fish retailers doing business in the State of Florida. If enacted, the proposed rules would substantially affect its interests and the interests of its membership. The Petitioner, Tim Adams, is a commercial fisherman doing business in Florida. If enacted, the proposed rules would substantially affect his interests. The Petitioner, Bird Island Fishery, is a harvester and wholesaler of fish within the State of Florida and its interests would be substantially affected by the enactment of the proposed rules. The Petitioner, Kim Gerz, is a commercial fisherman whose interests would be substantially affected by the proposed rules. The Petitioner, Goodrich Seafood, is a company that unloads and ships fresh fish in the State of Florida. Its interests would be substantially affected by the proposed rules. The Petitioner, Lee County Fisherman's Cooperative, Inc., is a company that unloads and ships fresh fish. Its interests would be substantially affected by the proposed rules. The Petitioner, Sigma International Co., is an exporter of mullet roe. If enacted, the proposed rules would substantially affect its business. The Respondent, Marine Fisheries Commission, is an entity created by statute to serve within the Department of Natural Resources and empowered with rulemaking authority as set forth in Section 370.027, Florida Statutes. The Intervenor, Florida League of Anglers, Inc., is a corporation whose purpose is to protect and enhance Florida's fisheries and their habitats. The Intervenor, Florida Conservation Association, is an affiliate of the Coastal Conservation Association, whose main interests are to protect and enhance Florida's fisheries and marine environments for recreational fishing in Florida. The Intervenor, Florida Audubon Society, is a corporation whose main purpose is to protect Florida's natural outdoor environment and wildlife. The Intervenor, Florida Wildlife Federation, is a corporation whose main purpose is to protect Florida's natural outdoor environment and wildlife. Background of the proposed rules: The Department of Natural Resources began a study of issues related to the black mullet fishery within this state in 1987. The study was to cover a five year period beginning in 1987-88. It was anticipated that the study would serve as the genesis for regulations to be imposed on black mullet fishing within the State of Florida. In 1989, the Commission adopted rules related to black mullet fishing. Those rules specified periods during which black mullet could not be fished, set gear restrictions, closed designated areas to fishing, amended qualifications to catch commercial quantities of mullet, and set recreational limits. The rules specified that during 15 weekends of the year, black mullet fishing would be closed for 30 hour periods. Another restriction, to become effective July 1, 1992, established a minimum net mesh size of three inches. In 1990, the Commission adopted additional rules related to black mullet fishing: new areas were closed to fishing, minimum net mesh size during roe season was increased to four inches, commercial fishermen were prohibited from using spotter aircraft to locate schools, and weekend closures were extended from 30 to 54 hours with the additional stipulation that the fish had to be at the dock by closing time. Further, two additional weekends were closed to fishing. In June, 1991, the Commission met to consider new, more stringent rules related to the black mullet fishery. As a result of the discussions at that meeting, proposed new rules and amendments to rules were published in the Florida Administrative Weekly, Vol. 17, No. 32, August 9, 1991. The proposed rules: Rule Chapter 46-39, as set forth in the Florida Administrative Weekly, Vol. 17, No. 32, August 9, 1991, provided, in pertinent part: MARINE FISHERIES COMMISSION RULE CHAPTER TITLE: RULE CHAPTER NO.: Mullet 46-39 RULE TITLES: RULE NOS.: Recreational Harvest Seasons 46-39.0035 Commercial Harvest, Statewide Regulations 46-39.005 Northwest Florida Commercial Harvest Restrictions 46-39.0055 Southwest Florida Commercial Harvest Restrictions 46-39.0075 East Florida Commercial Harvest estrictions 46-39.0095 PURPOSE AND EFFECT: The purpose of these proposed new rules and rule amendments is to implement additional, more stringent controls on commercial mullet harvest to begin rebuilding mullet populations over the long term to achieve a 35 percent spawning stock biomass ratio (SSBR) for the species statewide. The Commission established the SSBR goal after receiving the results of a five-year study of Florida mullet conducted by the Department of Natural Resources scientists. The state is divided into three areas (Northwest, Southwest, and East Florida) and differential rules are imposed in each area, with the Southwest area being more stringently regulated to coincide with scientific evidence showing a significantly lower SSBR in the area. Week-long closures, year-round in the Southwest and during roe season elsewhere, are considered to be more effective methods to reduce fishing mortality than roe season weekend closures, which are being eliminated. The closures will also apply to recreational harvesters, thus eliminating enforcement problems that occur during periods when recreational mullet harvest is allowed and commercial fishing is prohibited. Limiting gill and trammel nets to a maximum of 600 yards will result in a significant reduction in length of nets being fished in some areas, and may also result in a harvest reduction. Commercial daily vessel limits of 500 pounds during non-roe season are intended to reduce harvest during those periods when mullet are least highly valued. SUMMARY: New Rule 46-39.0035 establishes recreational week-long closures to coincide with commercial closures in the three areas established by new Rules 46-39.0055,46-39.0075, and 46-39.0095. The week-long closures will be during roe season in Northwest and East Florida, and year-round in Southwest Florida. A new paragraph is added to subsection (2) of Rule 46-39.005 to limit gill and trammel nets used to harvest mullet to 600 yards maximum statewide. New Rule 46-39.0055 establishes a commercial mullet closure during the 22nd through the 28th days of the months of September, October, November, and December in the Panhandle and Wakulla-Hernando Regions of the state. Also in this area, a commercial daily vessel possession and landing limit for mullet of 500 pounds is imposed during the months of January through August of each year. New Rule 46-39.0075 establishes a commercial mullet closure during the 22nd through 28th days of the each month of the year in the Pasco-Lee, Collier-Monroe Gulf, and Lake Okeechobee Regions of the state. Also in this area, a commercial daily vessel possession and landing limit for mullet of 500 pounds is imposed during the months of February through September of each year. New Rule 46-39.0095 establishes a commercial mullet closure during the 22nd through the 28th days of the months of October, November, December, and January in the East Coast and St. Johns Regions of the state. Also in this area, a commercial daily vessel possession and landing limit for mullet of 500 pounds is imposed during the months of February through September of each year. RULEMAKING AUTHORITY: Section 370.027(2), Florida Statutes. LAW IMPLEMENTED: Sections 370.025, 370.027, Florida Statutes. SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT OF THE RULES: The proposed amendments will directly affect those persons who harvest mullet for commerce. The proposal will indirectly affect wholesale dealers, retail dealers and consumers. The benefit of the measures is to ensure the sustained yield of the renewable mullet resource for human consumption and the food web. The cost of the proposal will be reduced levels of harvest and intermittent supplies of black mullet. The cost will vary regionally with the greatest reductions in the southwest Florida area. The proposed amendments will create a competitive advantage due to the differential regional regulations. The rule will not affect the open market for employment. The rule will affect small businesses. The rule will not increase paperwork or reporting requirements. Agency implementation costs for promulgation, hearings and filing will be approximately $6,500.00; enforcement costs total $38.00/hr. THE MARINE FISHERIES COMMISSION WILL CONDUCT A PUBLIC RULEMAKING HEARING ON THE PROPOSED RULES AT THE TIME, DATE AND PLACE SHOWN BELOW: TIME AND PLACE: 10:00 a.m. until 5:00 p.m., September 5, 1991; and 9:00 a.m. until 5:00 p.m., September 6, 1991 PLACE: Holiday Inn Tampa International Airport, 4500 West Cypress Street, Tampa Florida All written material received by the Commission within 21 days of the date of publication of this notice shall be made part of the official record. Subsequent to the publication of the notice described above, the Petitioners timely filed challenges to the proposed rules. Pursuant to the notice described above, the Commission met on September 5-6, 1991, for the purpose of conducting a public rulemaking hearing for the proposed new rules and proposed amendments to rules. At the meeting of September 5, 1991, members of the public were permitted to comment on the proposed rules and amendments. On September 6, 1991, the Commission allowed its staff to make a presentation regarding the options available to the Commission and deliberated the proposals before it. As a result of those deliberations, the Commission made substantial changes to the proposed rules. At that time the Commission acknowledged the challenges filed by the Petitioners herein and resolved to submit the changed proposed rules to the Governor and Cabinet for approval upon the favorable resolution of the administrative challenges. The substantially changed proposed rules were published in the Florida Administrative Weekly, Vol. 17, No. 39, September 27, 1991, and provided, in substance, for the following restrictions: 46-39.0035 Recreational Harvest Seasons--prohibits harvesting during the period of the first day and continuing through the seventh day of each month during the months of September through December of each year for the state waters from the Florida-Alabama border to the Hernando-Pasco County line; prohibits mullet harvesting during the period of the first day and continuing through the fourteenth day of each month during the months of January and September through December of each year for the state waters from the Hernando- Pasco County line to the Dade-Monroe County line, excluding state waters of the Atlantic Ocean in Monroe County and including all waters of Lake Okeechobee; and prohibits harvesting beginning on the first day of the month through the seventh day of each month during the months of January and October through December of each year in all state waters from the Florida-Georgia border to the Collier- Monroe County line, excluding state waters of the Gulf of Mexico in Monroe County and including all waters of the St. Johns River. 46-39.0055 Northwest Florida Commercial Harvest Restrictions-- prohibits harvesting mullet for commercial purposes in the Panhandle and Wakulla-Hernando Regions, as those areas are elsewhere defined, during the period beginning on the first day and continuing through the seventh day of each month during the months of September through December of each year. 46-39.0075 Southwest Florida Commercial Harvest Restrictions-- prohibits harvesting mullet for commercial purposes in the Pasco-Lee, Collier- Monroe Gulf, and Lake Okeechobee Regions, as those areas are elsewhere defined, during the period of the first day and continuing through the fourteenth day of each month during the months of January and September through December of each year. 46-39.0095 East Florida Commercial Harvest Restrictions--prohibits harvesting mullet for commercial purposes in the East Coast and St. Johns Regions, as those areas are elsewhere defined, beginning on the first day of the month through the seventh day of each month during the months of January and October through December of each year. The Commission abandoned the 500 pound trip limit previously proposed for each region but retained the limit for gill and trammel nets to 600 yards maximum, statewide. The Commission asserts that the changes to the proposed rules were generated by virtue of the written comments, public testimony, and Commission discussion contained in the record of the public hearing held on September 5-6, 1991. Scientific data: In determining an appropriate guide for managing the black mullet fishery, the Commission staff elected to utilize a system based upon a computer model commonly known as "DSPOPS." The DSPOPS model was designed by Dr. Ault, working with Dr. Mahmoudi, for use in mullet stock assessment. While Dr. Ault developed the model with the intention that Dr. Mahmoudi would use it in mullet stock assessment, Dr. Ault did not prescribe the variables to be inserted into the model or comment to Dr. Mahmoudi as to the advisability of his choices. In fact, the reliability of the model is dependent on utilizing reasonable scientific inputs where variables must be inserted. The spawning stock biomass ratio (SSBR) measures the total mature biomass or weight of the fish stock in an exploited fishery in relation to what it would be if it were unfished. The Commission determined, and the Petitioners have not challenged, that the desirable SSBR for mullet would be 35 percent. By using data from 1988 and 1989, and inserting variables into the DSPOPS model the Commission staff attempted to compute the baseline SSBR for mullet in Florida. The SSBR was calculated by region and was intended to depict the conditions of the mullet stock by each region. The use of SSBR as a tool to evaluate a fishery and propose management of it has been accepted in the past by the Commission and other entities charged with management responsibility. The target of 35 percent SSBR for mullet is a reasonable management goal. In electing which variable to plug into the DSPOPS model, Commission staff chose the conservative estimate or value for the parameter to be inserted. "Conservative" herein is used to mean that choice which would depict the "worst case scenario" and, would, therefore, in theory, err on the side of the preservation of the fish. Such selections, as will be addressed below, were not based upon the best scientific data available and constituted an improper use of the model. In utilizing the DSPOPS model, reasonable and appropriate scientific methodology dictate the use of reasonable values for the variables to be inserted into the model. When values from either extreme of the spectrum are used, the reliability of the output is diminished. That is, the less the probability of the occurrence in the real world would be. In this case, the Commission staff found in its initial stock assessment that the SSBR for mullet in the southwest region was 15.1 and 22.4 in the northwest region. That assessment required inputs in the DSPOPS model for the following parameters: recruitment function; natural mortality; fishing mortality; and sexual maturity. In choosing which input for recruitment function, the Commission staff used a Getz recruitment function. The recruitment function is intended to show the relationship among a designation of the fish population and the amount of new fish born into that population each year. Utilizing the Getz function, instead of the other available recruitment function options, consistently produces the lowest estimate of spawning stock biomass. Had the Commission staff utilized the Beverton and Holt density dependent option, the spawning stock biomass in the northwest region would have increased by 11.73 and in the southwest region by 5.29. With regard to the natural mortality parameter, the Commission staff chose a natural mortality of 0.3. The data available suggests that in Florida the mullet fishery has a natural mortality rate of 0.5. By using the lower value, the DSPOPS model calculated the SSBR at an arbitrarily lower level. Had the Commission staff used 0.43 for the natural mortality input the SSBR would have increased in the northwest region by 3.07 and by 4.79 in the southwest region. Similarly, the Commission staff used extreme variables when inputting the handling mortality. Thus, the computed spawning stock biomass was lower than a midrange option would have produced. Finally, with regard to sexual maturity, mullet achieve sexual maturity at age 4. That age is supported by competent scientific data and is established by the evidence presented in this case. Regardless, Commission staff used a sexual maturity matrix in the DSPOPS model that assumed some fish were still sexually immature at 6 and 7 years. If corrected, the SSBR results would have been increased by 10 percent. By relying on the DSPOPS modeling results for the SSBR assessment, as computed by the Commission staff, the Commission failed to consider the best available biological information regarding the mullet stock. When corrected parameters are input into the DSPOPS model, the SSBR assessment for mullet is dramatically increased. The amount of the increase depends on which parameter is changed. If midpoint values are selected and all inputs are changed, the model produces a SSBR for the northwest region of 52.74 and for the southwest region of 36.19. Economic data: Economic impact and small business impact statements were prepared for the proposed rules first published in August, 1991. Statements were not prepared for the amended proposed rules which were approved by the Commission at the September, 1991, meeting. Mullet have a shelf life of four days if handled properly. The bulk of the market demand is for fresh mullet with demand for frozen or smoked mullet being significantly smaller. Closures of longer than four days would require mullet customers to seek other markets for fresh mullet. Restaurants and other entities seeking a constant source of fresh mullet would look to other markets such as Louisiana to fill orders. If lost, such customers are hard to recapture as in the instance of the spanish mackerel market. It is anticipated that businesses relying on the fresh mullet market will lay off employees if extended closures go into effect. The economic impact statement did not estimate the number of people who would be unemployed or underemployed as a result of the closures. The monetary amounts of the lost market created by the reductions expected in the harvest of mullet was not included in the economic impact statement. The short-term and long-term values of lost market could be computed for those directly and indirectly impacted by the proposed rules. It is expected that the financial losses to commercial fishermen, fish wholesalers, and distributors will be considerable. Additionally, loss of mullet roe sales will result in loss of market since no fish stocks are available to substitute for the mullet roe. Options which would minimize the adverse economic impacts the proposed rules would cause for small businesses have not been presented or considered by the Commission. Closures of shorter duration but of more frequency would lessen the economic damage to small businesses. For example, four day closures would not result in the interruption of the availability of fresh mullet. As opposed to what is proposed, regulations which would increase the net mesh size to allow younger fish to remain uncaught would also lessen the economic damage to small businesses. An increase in the year of first capture would increase SSBR. As opposed to what is proposed, regulations setting trip limits for harvesting mullet would lessen the economic damage to small businesses. Setting net restrictions as proposed allows harvesting and lessens the economic damage to small businesses.
Findings Of Fact The Respondents, the Theoharises, own the property in question, which is located on the corner of Northeast 26th Street and Federal Highway in Ft. Lauderdale, which property is contiguous to the North Fork of the Middle River, a navigable waterbody within the State of Florida. The subject property is more particularly described as lying within Section 25, Township 49 South, Range 42 East, Broward County, Florida. The site is connected to and is a part of the North Fork of the Middle River with which it regularly exchanges tidal waters. The dominant plant species was white mangroves, a submerged species for purposes of Section 17- 4.02(17), Florida Administrative Code. The North Fork of the Middle River is part of a marine estuary system and as such is important as a spawning or nursery ground for commercially important fish and other marine life in their early life stages, as well as for bluefish, snook, tarpon, flounder and other commercially or recreationally important species. On August 24, 1979 the Respondent and his agents, at the request of the Theoharises, the owners of the property, brought a backhoe on the site and commenced clearing trees, shrubs, and other vegetation from the subject property, including the scooping out or uprooting of a stand of mature white mangroves growing along the river on the submerged portion of the property. This activity was observed by a landowner directly across the river who contacted the Department, who then sent its representative, Mr. Wittkamp, to inspect the work in progress on the Theoharises' site. Mr. Wittkamp identified himself to Mr. Bruce, the Respondent, as an inspector for the Department and informed him that, inasmuch as he did not have a permit authorizing the removal of the mangrove trees and the associated "dredging and filling" operation, he would have to discontinue the work immediately. The Respondent, however, proceeded to continue the removal of the mangroves and clearing the other vegetation, and the grading of the property, all of which was for the purpose of extending a parking lot for the Owner's restaurant. He ultimately completed the job in spite of the warning by the Department's inspector. No permit authorizing this activity was ever obtained. Upon completion of the job the Respondent and his agents had, without a permit, destroyed and removed 2,000 square feet of submerged lands constituting the total destruction of the stand of mangrove trees, and also pushed a quantity of soil, or fill, as well as trash and debris, into the Middle River below the mean high water line. An inspector for the City of Ft. Lauderdale, Mr. Robert Schimmel, visited the site in question prior to the destruction of the mangrove trees and established at the hearing that the trunk diameters of the mangroves before their removal was an aggregate of 98 caliper inches. Based on those measurements, Mr. Reis, an expert witness for the Department, established that the canopy cover provided by the destroyed mangrove trees was approximately 2,000 square feet, or 0.046 acres. If monetary damages are sought to be based on lost detrital value, as the Department seeks to do here, then that productivity loss represented by the removed mangroves can be more accurately measured by determination of the size of the canopy cover rather than other methods. In order to verify his calculation of the extent of the lost mangrove canopy cover Mr. Reis measured other mangrove canopies with similar trunk dimensions. That witness then took the 2,000 square foot dimension and calculated the value of the destroyed mangroves with reference to a scientific study, "The Tree Nobody Liked" by R. Gore published in the May, 1977 issue of National Geographic which ascribed a value of $4,000 per acre per year for South Florida mangroves. Other methods of economic valuation of mangrove stands were shown by reference to generally accepted authoritative scientific studies, to be as high as $84,000 per acre per year, and indeed, in 1974 Nicholas and Blowers, consultants to Deltona Corporation, published The Socioeconomic Impact of the Marco Island Development and set fourth values for mangrove trees per acre ranging from $34,000 to $100,000 per acre per year. So too, in 1974, Heald, Odum and Tabb published Mangroves in the Estuarine Food Chain, which cited average values for South Florida mangrove productivity equivalent to approximately $25,800 per acre per year. Thus the Petitioner used the lowest generally accepted method and figures for arriving at the value of the mangrove trees and there was no contradiction of the showing by the Department's expert witness that an acre of mangroves is actually worth considerably more than the figures used by the Department in calculating the alleged damages in this case. The unrefuted means of calculating the pertinent environmental loss is a conservative one especially because it only includes loss of the detrital value of the removed mangrove trees. Detrital value is the value of the accumulation of leaves, branches and seeds in the estuary in which the mangroves grow and which serves as an essential element in the estuarine food chain. The vegetable matter dropping in the water from the trees is decomposed by organisms such as algae, fungi and bacteria. The leaf particles dropped by the trees are coated with protein in the form of these microorganisms and then become available as a food source to zooplankton, which are in turn harvested by small fish and intermediate fish, which serve as food for larger species of fish which may be commercially valuable. The reduction in the mangrove population thus weakens the basis of the estuarine food chain and thus reduces the size of the aquatic community or species populations which can be supported by such a food source. Mangroves are additionally valuable because they serve a water cleansing function in that they filter out contaminants in the water in which they grow. They are particularly beneficial in controlling pollution from upland runoff. Nutrient uptake and assimilation is particularly important to the geographical area involved in this case because the North Fork of the Middle River is burdened with nutrient discharge from sewage treatment plants, as well as stormwater drainage. Thus the maintenance of healthy mangrove populations along the waterway is directly related to maintenance and restoration of good water quality and the prevention of eutrophication. In addition to the above benefits, mangroves serve as a shoreline stabilizer in that they prevent the erosion by wave action against the shore by storms or boat wakes, and provide shelter, food and breeding areas for fish and other forms of marine life. Mangrove wetlands aid in flood prevention, conservation of water during drought periods, produce oxygen and sequester heavy metals and other poisonous substances in the anaerobic muds they produce. Additionally, they serve as nesting and roosting habitat for birds and as a place of shelter for many terrestrial animals. Mangrove wetlands also, by serving as nursery areas for the rearing of fish and marine life, constitute an important basis of support for the area's sport fishing and commercial fishing industries. The Petitioner's assessment of the damages involved in this case from the destruction of the trees and shoreline area did not take into account any potential damage to the fishing industry or any damage attributable to the resultant loss of shoreline stabilization, however. Elimination of mangroves thus has an adverse effect on the water quality and interferes with and potentially injures the conservation and propagation of fish and other marine life, as well as terrestrial wildlife and other natural resources. The Petitioner, in establishing damages by the lowest proven method of evaluation, demonstrated a value of an acre of such mangrove trees per year of $4,000. Then, given that a mangrove seedling takes approximately 15 years to reach maturity, this annual loss of productivity should be multiplied by 15 years, times the total of 2,000 square feet of mangrove canopy destroyed or .046 acres. This unrefuted means of quantifying environmental injury caused by the acts of the Respondent establishes damages to be in the amount of $2,760. Various items of costs involved in tracing, investigating and preparing for the prosecution of this case were alleged by the Petitioner, including cost for preparation and attendance of the various expert witnesses. All of the witnesses were paid state employees, however, and although they doubtless spent a great number of hours preparing for this proceeding, the evidence does not establish the specific amount of costs and expenses for investigation, preparation and attendance of witnesses separately attributable to this case, as opposed to those incurred in the course of Petitioner's employees normal duties. Moreover, although the Petitioner entered into a settlement with the Respondents, the Theoharises, for a portion of the damages to the pollution violation here involved, there was no showing whether or not the $1,000 paid by the Theoharises to the Petitioner's warning notices and voluntarily agreed to replant mangrove seedlings in response to the Department's Order for Corrective Action and to pay $1,000 of the Department's estimate of damages. This agreement was signed by the Theoharises and took the form of a consent order (See Exhibit 1). The instant Respondent, Charlie Bruce, neither personally nor on behalf of his corporation, entered into the settlement negotiations involving the Theoharises.
Recommendation Having considered the competent, substantial evidence in the record, as well as the pleadings and arguments of counsel, it is recommended that the Respondent Charlie Bruce d/b/a Charlie Bruce and Sons Backhoe Service, Inc. pay damages for the above violations in the amount of $1,760. Said sum represents the total environmental damages proven to be caused by that Respondent, after deduction of the $1,000 damages already paid by the Respondents, the Theoharises and the alleged figures for costs and expenses which were not proven to be entirely attributable to this Respondent. The sum of $1,760 shall be payable to the State of Florida Pollution Recovery Fund c/o the Department of Environmental Regulation, Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida, 32301 within ninety (90) days from the date of entry of a final order herein. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of December, 1980. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1980.
Findings Of Fact Petitioner, John H. Phipps Broadcasting Stations, Inc., owns approximately 10,600 acres of land bordering on Lake Jackson. The corporation owns roughly seventy percent of the waterfront property around Lake Jackson. The corporation's land is used for agriculture. Less than ten percent of the land is used in a minor grain operation involving the interspersion of cover via several small grain fields. Most of these grain fields are in self-contained basins creating no erosion or runoff problems. These fields are conducive to the propagation of wildlife, particularly quail and deer. The grain produced by these fields is used, at least in part, in the corporation's cattle operation. Approximately twenty-five percent of the corporation's land is used in a cattle breeding operation involving three to five hundred head of cattle. No feed lot operation is involved. The cattle are in pastures, the majority of which are bounded by the waters of Lake Jackson. The corporation fences to and into the water because of the fluctuating level of Lake Jackson and the necessity to contain their cattle. This practice has been ongoing for more than twenty-nine years. The corporation presently has no permits of an environmental nature in connection with the cattle operation. The testimony by Petitioner's witnesses is that the pasture cattle operation is very conducive to good water quality because it captures runoff and allows it to percolate. The remainder of the corporation's land is used in a timber operation which includes controlled burning to help contain erosion. Witnesses for Petitioner corporation testified that the water quality of Lake Jackson bordering the corporation's land is excellent. A high priority of the agricultural operation of the corporation is the maintenance of good water quality in Lake Jackson. Activities are not permitted on the corporation's land that degrade the water quality of the lake. Attempts are made to keep runoff from the lake. The evidence indicates that there are no discharges of water from the corporation's lands into Lake Jackson other than natural runoff. The testimony presented by Petitioner corporation at the final hearing was that the corporation intends to continue using the property as it is presently used and has no tentative plans for a different use of the property. Petitioner, Colin S. Phipps, owns approximately 1,000 acres bordering in part on Lake Jackson. He is also president of John H. Phipps Broadcasting Stations, Inc. Colin S. Phipps rents his acreage and shooting rights to an individual who farms the acreage. He testified that nothing was done on the property that presently requires permits from the Department of Environmental Regulation. John H. Phipps and John E. Phipps personally own parcels of land bordering on Lake Jackson. The three individual petitioners in this cause are officers of the corporate Petitioner. No evidence was presented to show activities on behalf of the petitioners on their property other than that set forth above. Further, it was the position of the petitioners that they did not foresee a change in the activities presently occurring on their property. It was their position that they had no tentative future plans for the property. They did indicate that they did not know what the future might bring. An experienced and qualified appraiser appeared on behalf of petitioners and testified that he had read the rules being challenged in this cause, was familiar with the subject property, and that in his opinion the vagueness of the proposed rules would dramatically and adversely affect the value of Petitioners' land. There are several problems with this opinion testimony. The witness did not testify that he had appraised the property. Rather, he testified that he was very familiar with the property. Thus, his testimony on the value of the land is speculation, albeit knowledgeable speculation, rather than the considered expert opinion of an appraiser. Further, the witness' opinion was based on his reading as a layman of the proposed rules and his speculation of their effect on the real estate market in which the subject lands might be offered for sale. The Hearing Officer found that the witness was a qualified appraiser with experience in appraising the economic impact of environmental regulations on waterfront property. Nevertheless, his interpretation of the proposed rules carries with it no aura of correctness for he is not, and, perhaps as all of us, cannot be, an expert in the interpretation of rules. The rules must speak for themselves and the witness can only speculate on the effect of different interpretations which might be given the rules. Therefore, the Hearing Officer concludes that the opinion of the witness is so speculative that his testimony is incompetent to support findings of fact as to the effect of the proposed regulations on the market value of Petitioners' real property.
