The Issue The issue presented for decision herein is whether or not Respondent, Gables Engineering, is required to obtain a surface water management permit for its property known as the G-Bar-E Ranch in Okeechobee County, Florida.
Findings Of Fact Upon consideration of the witnesses and their demeanor while testifying and documentary evidence received, the following relevant facts are found: The South Florida Water Management District (District) is a public corporation of the State of Florida existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code as a multipurpose water management district with its principal office in West Palm Beach, Florida. Cables Engineering, Inc., owns property known as the G- Bar-E Ranch which is located in Okeechobee County, Florida. The property is located at the confluence of Otter Creek and Taylor Creek. Otter Creek flows into Taylor Creek which flows offsite into Lake Okeechobee. On August 28, 1986, the District issued an Administrative Complaint and Order which ordered Gables to obtain a surface water management permit pursuant to Chapter 373, Part IV, Florida Statutes for the surface water management system on the G-Bar-E Ranch. Gables refused and requested an administrative hearing on the Complaint and Order. Don Dillard is a Vice President of Gables and has overall responsibility for operating the Ranch. He has been employed by Gables for nine years. Gables has in its employ a ranch manager who remains on site. Until recently, Gables operated the property as a cattle ranch. A portion of its herd was sold to a former ranch manager who also remains on site. Alvin Castro is a civil engineer employed by the District as an area engineer which includes the area of Okeechobee County. Mr. Castro conducted a site inspection on the G-Bar-E Ranch on January 6, 1987. The inspection documented that there are two pond systems on the subject property and eleven hydraulic connections from the subject property to Otter Creek and Taylor Creek. One pond system, identified as pond system No. 2, is located in the mid-western area of the ranch east of Taylor Creek. It consists of three main ponds which are interconnected in a chain with hydraulic control structures and outfall ditches. The ponds were at one time natural ponds but have been deepened and improved to provide a water source for cattle and to store and convey water. A water control structure is located at the western end of each of the three ponds. The structures are aligned and installed to convey water from the upstream ponds to the downstream ponds. The control structures are culvert riser type. A culvert is a man-made conduit that conveys water to a point and allows it to flow. A riser is a half-section of a culvert or pipe welded perpendicular to the outfall culvert. Its main function is to serve as a support structure for weirs or flashboards, which regulate the upstream stages in a ditch. It allows water, as its flows over the spillway or weir, to be collected and directed to the outfall pipe or culvert. Mr. Castro observed water flowing, at the time of inspection, through all three outfall ditches to the south and westward from the pond system to a hammock area. The ponds have been cleaned of vegetation and the culverts and risers have been maintained by Respondent. One culvert riser structure conveys water from Pond 1 to Pond 2 which consist of a 96-inch riser and a 60-inch culvert, approximately 50 to 60 feet long. At the time of the inspection, water was being discharged through the control structure to an outfall ditch that connects Pond 1 to Pond 2. The outfall ditch is a man-made ditch. A second control structure connects Pond 2 to Pond 3 and interconnecting ditches consisting of a 96-inch ditch riser with a 60-inch culvert in place to hydraulically connect Ponds 2 and 3. The control structure allows water to flow underneath a private road to Pond 3. Mr. Castro observed water flowing from Pond 2 to Pond 3 at the time of his inspection. In the absence of the culvert, the pond system would run together as a large pond. The culverts alter the natural water storage capacity and drainage arrangement on the G-Bar-E Ranch. The third controlled structure is located on the southwest end of Pond It consists of a 96-inch riser on a 60-inch culvert and a sheet pile weir. At the time of his inspection, Castro observed that there was flow of water from the control structure and Pond 3 through the outfall ditch to a hammock wetland area to the southwest. (Petitioner's Exhibit 3, photos 1-6). The other pond systems, identified as pond system 1, is located in the northern portion of the property near the east bank of Taylor Creek. It consists of three main ponds ranging in size of one to five acres. One pond is connected to an outfall ditch to the southwest through a twenty-four inch culvert which runs underneath an existing grass road. At the time of Mr. Castro's inspection, it was conveying water from the pond westward into a vegetated area. The other two ponds are connected to each other via a 12-inch culvert underneath an existing grass road. The ditch is about three to five feet wide. At the time of Mr. Castro's inspection, there was flow of water between the two ponds. The downstream pond has an open connection (no control structure) to a ditch, which ultimately discharges to Taylor Creek. At the time of the inspection, water flow was observed (by Castro) in the ditch and was being discharged from pond 6 to Taylor Creek. (Petitioner's Exhibit 3, photos 11-14) The ditches in the pond system are prismatic; fairly uniform in cross section top width, depth and bottom width, with a straight alignment which indicates that they are man-made. The pond system is well-maintained by Respondent and free of vegetation. (TR, 21). There are four ditch structural connections from the G- Bar-E Ranch to Otter Creek. The easternmost structure consists of a 24-inch riser with a 15- inch culvert. It serves to convey stormwater from an upstream ditch system on the G-Bar-E property to Otter Creek and thereafter, offsite. There was flow to the structure to Otter Creek at the time of Mr. Castro's inspection. (Petitioner's Exhibit 3, photo 7). The second structure is located westward from the first. It consists of a 20-inch riser and a 13-inch culvert. (Petitioner's Exhibit 3, photo 8). The third structure is located westward from the second. It consists of a 32-inch riser and a 16-inch culvert. Discharge of water from the G-Bar-E property to Otter Creek through the third structure was observed by Mr. Castro during his inspection. (Petitioner's Exhibit 3, photo 9). The fourth structure is located westward from the third, consisting of a 36-inch riser and a 24-inch culvert. (Petitioner's Exhibit 3, photo 10). There are several manmade hydraulic connections to Taylor Creek on the G-Bar-E Ranch. On the eastbank of the Creek, the northernmost, identified as Ditch A, is a straight channel. At the time of Mr. Castro's inspection, it was discharging water from the G-Bar-E property to Taylor Creek by means of a 36- inch riser and a 30-inch culvert. The discharge served to drain the G-Bar-E property. (Petitioner's Exhibit 3, photos 15-16). The next ditch south is a prismatic channel with a straight alignment and uniform cross section, connected to Taylor Creek by a 46-inch riser and a 36-inch culvert. At the time of Mr. Castro's inspection, it was discharging water from the G-Bar E property to Taylor Creek. (Petitioner's Exhibit 3, photos 19-22). The headwaters of the ditch is a hammock wetland area at its upstream reach. (Petitioner's Exhibit 3, photos 19-22). The next ditch south is connected to Taylor Creek via a hydraulic control structure consisting of a 42-inch riser and a 30-inch culvert. The structure has at least one flashboard, which is a temporary barrier affixed to the slots on the riser and used to hold and regulate upstream water levels and to increase or decrease the storage capacity. (Petitioner's Exhibit 3, photos 24-25) The ditch drains a hammock area in the interior of the G-Bar-E property which lies to the northeast. It controls water from the upper end of the G-Bar-E property. On the westbank of Taylor Creek, the northernmost connection is an open connection to Taylor Creek. (Petitioner's Exhibit 2, sheet 1; Petitioner's Exhibit 2, photo 17). South of that connection is another ditch with an open connection to Taylor Creek. To the South is another open channel connection to Taylor Creek which has a non-functional control structure at the downstream end. (Petitioner's Exhibit 3, photo 23). The existing system of ponds and ditches on the G-Bar-E Ranch will collect, convey and can regulate upstream storage and flow rates to Taylor Creek and Otter Creek. In 1963 Gables conveyed to Okeechobee County a permanent easement along Taylor Creek. The Taylor Creek easement runs through the G-Bar-E property, roughly from the northeast corner to the southeasternmost corner. The easement to Okeechobee County covers about 150 feet on each side of Taylor Creek through the property. The purpose of the easement, as stated on the face of the document, is for the construction necessary to improve the Taylor Creek channel including widening, deepening, straightening, spoil placement and spoil disposition, installation of drip and pipe drop spillways; for operation and maintenance of the channel; and for the flowage of water through the channel, spillways, and pipe drop spillways. The grantor (Gables) reserved the right to use the easement land at any time, in any manner and for any purpose not inconsistent with the full use and enjoyment thereof by Okeechobee County. A small portion of the ditches on the G-Bar-E Ranch which connect to Taylor Creek and the control structures in those ditches lie within the area covered by the easement granted to Okeechobee County (approximately 150 feet). However, the major portion of the ditches all lie outside the easement granted to Okeechobee County. (TR 63-64; Respondent's Exhibit 4). The ditches serve to drain the G-Bar-E property into Taylor Creek and benefit the G-Bar-E Ranch property. This use is consistent with and permitted by the county's easement. The ditches and structures serve the purpose of draining the property and facilitating the flow of water to Taylor Creek. Mr. Dillard testified that Gables Engineering has not constructed, repaired or maintained any of the ditches during his nine year tenure with the company. (TR 67). However, no evidence was presented to indicate that the ditches or structures were constructed by Okeechobee County pursuant to the easement or that they benefit Okeechobee County rather than Respondent. In 1966 and 1967, Respondent granted to Okeechobee County a permanent easement along Otter Creek and Bimeny canal, which run roughly from east to west near the northern boundary of the property. The easement is for construction necessary to improve Otter and Bimeny Creek including widening, deepening, straightening, spoil placement and disposition, installation of drop and pipe drop spillways; for operation and maintenance of the channel and the flow of water to the channel, spillways and pipe drop spillways. Gables Engineering, Inc. reserved the right to install pipe drop inlets, retain, impound and regulate the flow of water into Otter Creek and Bimeny Canal lying within the Grantor's land, provided they are installed in conformance with sound engineering practice. Respondent reserved the right to use the easement property at any time and for any purpose not inconsistent with its use by Okeechobee County. (Respondent's Exhibit 2). Four control structures lie within the easement area along Otter Creek and Bimeny Canal. A small portion of the ditches from the G-Bar-E Ranch property leading to the control structure lie within the easement area. There is no record evidence to establish that the control structure, which facilitates the flow of water to Otter Creek and Bimeny Canal, is maintained by Okeechobee County or in any way serve the purposes of the easement to Okeechobee County. It is unclear who actually constructed the structures. The structures serve to convey water from the G-Bar-E property to Otter Creek. (Petitioner's Exhibit 3, photos 7 and 9). This appears consistent with and expressly permitted by the easement granted to Okeechobee County. In 1964 Gables Engineering granted Okeechobee County a bridge and access road easement which consists of an existing graded road forty feet in width running from State Road 15 to the west boundary of Taylor Creek. The easement is for purposes in conjunction with the construction, maintenance and operation of an access road and bridge across Taylor Creek. The access road and bridge across Taylor Creek do not presently exist. The road easement crosses over a culvert between two of the ponds in pond system 2. However the pond system itself, including the outfall structure and ditch at the western end of the system, lie outside the easement. The easement also crosses a culvert in pond system 1, but the remainder of the pond system lie outside the easement. (TR 63-64). The ponds, control structures and ditches on the G-Bar- E Ranch serve to drain the property internally and to Otter Creek and Taylor Creek. One pond system drains water into a hammock area to the southwest. This system consist of three ponds with control structures between each pond and an outfall ditch at the southwestern end of the system. The other pond system drains water to wetland areas and to Taylor Creek. It consists of three ponds, control structures and outfall ditches to a wetland area and to a ditch leading to Taylor Creek. While Respondent maintains that the culverts were installed for the purpose of allowing vehicular access between the southern and northern areas of the Ranch, the credible evidence reveals that the control structures primary purpose is to drain the property and control the flow of water throughout the system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner, South Florida Water Management District enter a Final Order requiring Respondent, Gables Engineering, to file an application to obtain a surface water management permit to operate works on the G Bar-E Ranch pursuant to Chapter 373, Part IV, Florida Statutes and that an initial application be submitted to obtain a surface water management permit within 30 days of the entry of the Final Order in this case. RECOMMENDED this 18th day of September, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1987. COPIES FURNISHED: Sarah Nall, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33402 Robert W. Stewart, Esquire Corrigan, Zelman & Bander, P.A. Rivergate Plaza, Suite 200 444 Brickell Avenue Miami, Florida 33131
Findings Of Fact Lake Worth Drainage District requested a variance from the provisions of Rule 17-3.121(13) , Florida Administrative Code, related to dissolved oxygen parameters which would be involved in the installation of a canal known as the S-9 Canal to be located in Palm Beach County, Florida. That request was met by the Department of Environmental Regulation's Statement of Intent to Deny, leading to a request for formal hearing filed by Petitioner with the Department on May 26, 1983. On June 1, 1983, the Department requested the Division of Administrative Hearings to conduct a formal hearing in that matter. The variance request became D.O.A.H. Case No. 83-1741. Contemporaneous with the variance request that was pending before the Department of Environmental Regulation, was petitioner's request for necessary construction permits to install the S-9 Canal. Again, the Petitioner was informed of the agency's intent to deny that permit request. As a consequence, Petitioner requested a formal hearing to question the Department's policy decision. That request for formal hearing was made on June 23, 1983. Effective July 1, 1983, the Department asked the Division of Administrative Hearings to conduct a formal hearing related to that permit request. The case related to the dredge and fill permit is D.O.A.H. Case No. 63-2132. WITNESSES AND EXHIBITS In the final hearing, petitioner presented the testimony of Richard Wheeliahn, Assistant Manager for Lake Worth Drainage District; John Adams, General Counsel for Lake Worth Drainage District; Mike Slaton, supervisory biologist with the United States Corp. of Engineers; William Winters, Lake Worth Drainage District's in-house engineer; Rebecca Serra, South Florida Water Management District's Water Management Engineer, who was accepted as an expert in water management engineering; Raleigh Griffis, Agricultural Agent with the United States Department of Agriculture, accepted as an expert in the agricultural practices found within the area of the proposed S-9 Canal; William E. Hill, Consulting Engineer for Petitioner, who was accepted as an expert in civil engineering and drainage design; and Robert D. Blackburn, consultant to Lake Worth Drainage District, accepted as an expert in freshwater ecology to include water quality and biology. Respondent called as witnesses Dan Garlick, Environmental Specialist for the Department of Environmental Regulation, accepted as expert in dredge and fill matters; Keith McCarron, Environmental Specialist for the Southeast Branch of the Department of Environmental Regulation, accepted as an expert in dredge and fill matters and Helen Setchfield, Technical Assistant to the Department's Director of the Division of Environmental Permitting. In addition, Richard L. Miller, Rebecca Butts, Francis T. Kuschell, Donald King and Dan alley were public witnesses in favor of the proposed project. Rosa Druando and Sherry Cummings were public witnesses opposed to the project. Petitioner offered 45 exhibits which have been received. Respondent introduced two exhibits which were admitted. The public offered two composite exhibits which were admitted. SPECIFIC FACTS Lake Worth Drainage District is a governmental entity created by the Florida Legislature. The District's function is that of the control of water supply and elevation related to lands within its jurisdiction. Those areas in dispute in the present case are within that jurisdictional ambit. In this instance, Lake Worth Drainage District has proposed the construction of a drainage facility involving dredging and filling of approximately 45,000 cubic yards of material. In particular, Petitioner seeks necessary permits from Respondent to construct a canal known as the S-9 Canal, whose purpose would be to transport the flow of water from an agricultural operation north of the canal site. Petitioner's Exhibit No. 1 depicts the area in question with the north- south orange tape representing an unnamed drainage ditch or canal and the blue tape showing the proposed S-9 connecting it to the east-west orange tape line which is L23W. The primary type of water expected in the canal is stormwater; however, surface and groundwater will also be in the canal system at times. The agricultural operation is capable of discharging at a rate which would utilize 145 CFS of the potential capacity of the canal system contemplated for construction which ultimate capacity is 170 CFS. The proposed canal by its connection of the existing agricultural drainage ditch or canal and L23W, becomes part of a water transport system flowing to the Atlantic Ocean through the South Florida Water Management District and Lake Worth Drainage District canal network. The principal benefit of the construction of S-9 would be to create a uniform connection of water discharge from the agricultural operation into L23W. Secondarily, it would relieve periodic flooding of a residential area west of the unnamed drainage ditch and northwest of the proposed S-9 Canal. It is not designed to receive direct water input from that residential area. Only the agricultural operation has been granted permits to discharge into the unnamed canal through two pumping stations to the east of that canal and as a result of the present permit request through S-9 and thus to L23W. Those persons living in the residential area west of the unnamed canal have not sought necessary permitting for discharge into the proposed S-9 System. Moreover, even if permits were granted to the residents, the S-9 system would only allow the addition of 25 CPS over and above the 145 which the agricultural operation has preempted. The 25 CPS would not satisfactorily address high water problems found in the residential area. A more particular description of the limited value of the project's benefit to the homeowners is that it protects against occasional flooding which occurs when the farm operation discharges into the unnamed canal, causing water incursion in the southeast corner of the residential area to the west of the unnamed canal. If the S-9 Canal is constructed, it will be built within an 80 foot right-of-way held by petitioner. The canal as depicted in petitioner's Exhibit 35 admitted into evidence is 40-45 feet wide, approximately 5-8 feet deep and is configured in a u-shape transversing an area of 7,730 feet. The applicants in this present proposal have added a vegetated iittoral zone on one side of the canal and it covers approximately 20 percent or 1.9 acres of the canal surface. This zone affords a limited amount of treatment of the water in the system. In this regard, approximately 30 percent of the nutrients found within the water flowing in the system would be expected to be taken up or absorbed in the vegetational zone, except in the months of August and September, when optimum retention time within the system will not be afforded to allow the littoral zone to uptake 30 percent of contaminants in the water. A 21 foot maintenance berm would be constructed on the east side of the canal and bleeder pipes would be installed to control water elevations in the adjacent wetlands. The 170 CFS volume mentioned before is the design capacity of the proposed system. At that volume, the flow velocity is less than 2.6 feet per second, a velocity at which the canal's structural integrity would be expected to continue, i.e., erosion will not occur. The 145 CFS expected from the agricultural operation pursuant to permits for discharge issued by the South Florida Water Management District would promote a flow velocity of approximately 2 feet per second. This farm activity is known as the DuBois farm. (Its permit from the South Florida Water Management District allowing the 145 CFS to be discharged into the unnamed drainage ditch or canal is not contingent upon the construction of S-9.) The configuration of the S-9 Canal has been brought about principally to advantage the Petitioner in obtaining a construction permit from the United States Corps of Engineers. The Corps had an interest in protecting that corridor of land over which it has jurisdiction which is adjacent to the S-9 Canal and is described as a wetland area. A consequence of this choice of design for S-9 is the typical 72 to 80 hour travel time of water introduced into the system providing some settling of pollutants and some assimilation of pollutants within the littoral zone of the canal discussed before. 10..Necessary permits have been obtained from South Florida Water Management District and the United States Corps of Engineers to allow the construction of the proposed project. The configuration of this project takes into account the special concerns of those two agencies. In this sequence of collateral permitting, South Florida Water Management District has been responsible for an examination of stormwater quality considerations in deciding to grant a permit to Petitioner. With the construction of S-9 and connection of the unnamed canal to S- 9 and thus to L23W, all the waters within that conveyance system become Class III waters of the state in keeping with Chapter 403, Florida Statutes and its associated rules of the Florida Administrative Code. In effect, this is a dredge and fill activity under the Respondent's jurisdiction found in Rule 17- 4.20, Florida Statutes. As such, it becomes a stationary installation which can reasonably be expected to be a source of water pollution of waters of the state by discharge of pollutants into waters of the state as envisioned by Section 403.087, Florida Statutes. During the construction phase of the canal, water quality degradation can be controlled related to turbidity, transparency and other criteria. Upon connection of the S-9 Canal to L23W and the utilization of that system, problems will be experienced with dissolved oxygen levels and to a lesser extent, nutrients and total coliform. Oils and greases problems are possible though not probable. No other water quality impacts are expected after connection. In expectation of the difficulty in achieving compliance with Respondent's water quality standards related to dissolved oxygen, the Petitioner has sought a variance under Section 403.021, Florida Statutes. This request is necessary because the dissolved oxygen levels in the proposed S-9 Canal, the unnamed canal or drainage ditch and L23W are not expected to uniformly exceed 5 mg/1. See Rule 17-3.121(13), Florida Administrative Code. The problem with dissolved oxygen in the unnamed canal and L23W and expected in the S-9 canal is not an enigma. This condition is prevalent in the South Florida area to include Palm Beach County, the site of the project. The water in the canals and drainage ditches in the region is frequently in violation of the standards related to dissolved oxygen, given the elevations of the land, climatic conditions, type of plant life, water temperature and constituents of the water. The addition of S-9 to the system would neither improve nor significantly degrade the quality of water related to the dissolved oxygen values for Class III waters, of which this proposed system is constituted. This finding acknowledges the fact that dissolved oxygen values in the unnamed canal are superior to L23W. Nonetheless, upon completion of S-9 and connection to the two other canals, no significant positive improvements of dissolved oxygen will be realized. Moreover, considering the fact that the installation of the S-9 Canal will stop the flooding on the southeast corner of the residential area west of the unnamed drainage ditch or canal, an increased volume of water flowing into L23W at any given moment can be expected, compared to the present outfall primarily along the Florida Power and Light system road into L23W. This has significance related to the dissolved oxygen standard to the extent of an increased volume of water in which substandard dissolved oxygen levels are found being introduced into L23W. It is more significant related to nutrients and bacteriological quality of the water, in particular fecal coliform. While there is no reason to believe that the quality of cleansing of water involved in sheet flow into L23W related to nutrients and coliforms is remarkably better at present, given the sparse vegetation along the power-line road which leads to L23W, than would be the case with S-9 with littoral zone, the increased volume of cater being introduced at the connection of S-9 and L23W during times of peak discharge, can be expected to present greater quantities of nutrients and coliform. In essence, the treatment afforded by the littoral zone and the transport in the S-9 Canal, contrasted with the treatment afforded during the transport of waters by sheet flow along the relatively barren stretch of land adjacent to the power-line road is found to be comparable, and the differences relate only to volume of discharge. This difficulty with nutrients and coliform count has been confirmed by tests made in the unnamed canal showing excessive levels of nitrogen, phosphorus and coliform and the water treatment features of the S-9 Canal will not entirely remove these materials. Although the farming practices of the DuBois operation tend to alleviate some nutrient loading in the unnamed canal, the test results established that those practices do not entirely eliminate the introduction of those nutrient materials into the canal. Consequently, some problems related to the effects of nutrient loading on populations of flora and fauna in the proposed system can be expected. In the context of the variance request, alternatives to the construction of the S-9 Canal are here considered. The alternative to leave the circumstance as it now exists carries with it the risk of periodic flooding of the southeast corner of the residential property west of the unnamed canal. That area and the balance of the residential acreage are subject to flooding without regard for the agricultural operation to the east. To deal with the difficulty related to the elevated water table, rainfall events and the flooding due to farm operation, some persons who reside in that residential tract have employed their own pump systems and ditches and retention areas to combat problems related to the geography of their property. In addition, the property is protected to some extent from outside influences by the existence of a dike and associated ditch, which limit some off-property incursion of water and assists to an extent in the transport of water away from their property. Moreover, the DuBois farm operation recently has placed a barrier at the end of the unnamed canal which directs water south along the Florida Power and Light road into L23W. In addition, the farm management has held down the pump speed during a rain event to protect the residential area. Nonetheless, at times the dike in the southeast corner adjacent to the residential property has breached in heavy rain events. As an alternative, the installation of S-9 would be only partially effective in alleviating the adverse conditions in the residential area west of the unnamed canal. It principally helps the DuBois farm operation. The relief afforded the residents would be the cessation of flooding caused by the operation of the farm pumps to the east as they breach the area in the southeast corner of the residential property, the future possibility of introducing as much as 25 CFS into the S-9 System subject to appropriate permits and the more tenuous possibility that the farm operation and the residential area could share the remaining 145 CPS capacity in the proposed system. The latter point isn't tenable from an examination of testimony at hearing. First, because the farmer wishes to conserve fertilizer and to maintain the moisture gradient and he does this by pumping off stormwater in a rainfall event, which events are most prevalent during his agricultural season. Secondly, the residential area is most in need of relief when the farmer is. Finally, the question of necessary permits to share capacity is unclear. Other alternatives related to a more comprehensive protection of the residential area by diking, a direct connection canal system to L23W from the unnamed canal, or dispersed sheet flow through the wetland area adjacent to the proposed S-9 Canal are not viable either for reason of design infirmity or impediments from other permitting agencies or inadequate property rights. Therefore, the viable choices are to either leave the property as it now stands or grant a permit to allow the construction of S-9. Between the remaining choices, no particular advantage is gained by the construction of this project. Dissolved oxygen problems in L23W, the receiving body of water, will not improve with the S-9 construction in a significant way and given the increased volume of discharge into L23W promoted by this construction are made worse. Nothing in the construction is so compelling to cause the exercise of the Respondent's discretion in favor of the grant of a variance related to dissolved oxygen values. 16..In examining the variance request by affording deference to Petitioner's regulatory responsibility, the need of the Lake Worth Drainage District to provide relief to those residents who are paying for drainage services is conceded. To that end, the proposed project does provide a certain amount of relief but it does not have as its primary emphasis purported assistance to those residents. As often stated, its principal benefit is to the DuBois farm operation. Left unresolved is the major source of suffering which is the lay of the land, a source which has prevailed from the beginning of the utilization of that property on the part of the residents. Plainly stated, much of the residential area was from the beginning and continues to be under water. The removal of the farm flooding and the future possibility of introducing a small increment of discharge into the S-9 system from the residential area subject to necessary permitting does not modify the characterization of this project as being one primarily for the farmer and to a much lesser extent for the residents. On this occasion, Petitioner's choice to fulfill its change is not persuasive enough to create special permission to violate the dissolved oxygen standard. In summary, a variance from the dissolved oxygen standard for Class III waters is not indicated. On the question of the permit application, in addition to failing to give reasonable assurances related to dissolved oxygen, the applicant has failed to satisfactorily address the problems with nutrients and coliforms. Other water quality standards have been satisfactorily addressed. Again, most of the water that will be introduced into the proposed system shall be stormwater; however, there will be other water components in the system constituted of surface water an groundwater, which also carry nutrients arid bacteriological deposits. Surface and groundwater are involved, given the level of elevations in the area, the depths of the unnamed canal, S-9 Canal and L23W and the fact that the DuBois farm operation can extract waters from the E-l Canal to the east of the farm properties as well as discharge water into that canal. It will not always be possible to distinguish whether the water in the proposed system is stormwater, groundwater or surface water. Consequently, South Florida Water Management's permitting related to stormwater is not definitive.
Findings Of Fact The Dunes Golf and Country Club, Sanibel, is a partnership owned by John K. Kontinos and William R. Frizzell. They operate a nine hole golf course consisting of 65 acres of the eastern portion of Sanibel Island. The golf course is open to the public and, during the winter season, some 150 to 175 persons utilize the facility daily, but in the period May--November, it is utilized by only about 15 or 20 persons per day. The golf course is presently irrigated by water obtained from the lower Hawthorn and Suwannee aquifers through a well that is approximately 737 feet deep. On the days that water is pumped from the well, the pumping duration is from 8 to 12 hours per day, but the monthly hours during which pumping occurs averages approximately 155 hours per month. There is another existing well in another portion of the applicant's property which extends 896 feet into the Suwannee aquifer. The well presently in use (well number 1) has 546 feet of casing and the well that is not in use (well number 2) has 700 feet of casing. (Testimony of Kontinos, Exhibits 2, 4) On December 15, 1977, the Dunes Golf and Country Club submitted an application to the South Florida Water Management District for a consumptive use permit to withdraw 320 acre feet of groundwater per year to irrigate an area of approximately 109 acres. The intent of the application was to obtain a sufficient quantity of water to irrigate the golf course which the applicant intends to enlarge to consist of 18 holes. The additional 9 holes would cover some 44 acres and well number 2 is intended to be activated to provide additional water for this purpose. (Testimony of Kontinos, Keiling, Exhibits 1- 2) The South Florida Water Management District issued the required public notice of the application on March 30, 1978, and objections to the application were received by that agency from the City Council of Sanibel, the Island Water Association, Inc., and George R. Campbell. Public notice of hearing on the application was duly published on March 30, 1978. (Exhibits 5-7) The staff of the South Florida Water Management District reviewed the application and recommended continuation of the applicant's existing use from the lower Hawthorn Formation and use of additional irrigation water from the Suwannee aquifer in the total amount of 320 acre feet annually. It also recommended that the issuance of a permit should be conditioned in various respects to include semiannual submission of water quality data and pumpage records for each well, installation and maintenance of well controls, and repair or replacement of well casings, valves or controls that leak or become inoperative. The staff further recommended that maximum monthly withdrawals from the lower Hawthorn Formation be limited to 7.5 million gallons and 7.6 million gallons from the Suwannee Formation. At the hearing however, the South Florida Water Management District representative changed these recommendations to 8.9 MO and 6.1 MG respectively. Additionally, the initial recommendation of 320 acre feet annual withdrawal was reduced to 200 acre feet. This amount is considerably less that the average of 600 acre feet used on other comparably sized golf courses. Further the staff representative recommended at the hearing that a further condition be attached to the issuance of the permit; i.e., Condition 15, which requires the permittee to submit analyses of total dissolved concentrations in water samples from each well within 30 days of permit issuance and, if such concentration exceeds 4,000 MG/L, logging procedures as to the affected well will be required with necessary safeguards to be employed to eliminate any interaquifer leakage. (Testimony of Gleason, Exhibit 4) The objections of the City of Sanibel and the Island Water Association, Inc. involved concerns that further withdrawals from the lower Hawthorn aquifer will affect the availability of water which is treated by the water association for general island use. In addition, there is concern about possible contamination of the lower Hawthorn aquifer from interaquifer leakage. The Water Association is a member-owned cooperative that is not under the jurisdiction of the municipality. It is concerned about the draw down in the water table which will be occasioned by additional withdrawals by the applicant. It therefore believes that pumping tests should be conducted prior to the issuance of a permit to provide information concerning the capacity and safe yield of the wells. Although an Association expert testified that the proposed Dunes' withdrawal would create a cone of depression that would extend into and influence the existing Water Association wells, the evidence shows such influence to be minimal due to the fact that the Dunes wells are almost three miles away from the nearest Association well. Further, due to the limited time that the Dunes wells are pumped each day, the aquifer recovers to a certain extent during other hours. Although concerns are felt by the Water Association that water quality will be affected because of leakage from the Suwannee aquifer to the lower Hawthorn aquifer due to possible corrosion of steel casings in the Dunes wells, no evidence was presented that such casings are in fact defective and will contribute to degradation of water quality because of additional withdrawals. The additional special condition placed upon the issuance of a permit by the South Florida Water Management District will require correction of any such leakage that is discovered in the future. Previous studies show that the lower Hawthorn aquifer is separated from the Suwannee aquifer by the Tampa Limestone Formation which would slow down any entry of poorer quality water into the Hawthorn aquifer. It is found that the lesser amounts of water recommended by the South Florida Water Management District at the hearing will further reduce the likelihood of water quality degradation or draw down in other Island wells. (Testimony of Butler, Holland, Nuzman, Gleason, Exhibits 6, 8-13) Ecological concerns were expressed at the hearing by a public witness as to the wastefulness of irrigating golf coup Yes and the requirement for fertilizer in sandy soil which causes leaching of nutrients after heavy water use. (Testimony of Webb)
Recommendation That a permit be issued to the applicant authorizing the consumptive use of the quantity of water recommended by the South Florida Water Management District staff, subject to the recommended conditions thereto. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John H. Wheeler Post Office Box V West Palm Beach, Florida 33402 James D. Decker, Esquire Post Office Box 200 Ft. Myers, Florida 33902
The Issue The issue in this case is whether the South Florida Water Management District (SFWMD) should grant the application of Daniel Borislow, LLC, for an after-the-fact Environmental Resource Permit (ERP) and issue ERP 50-09272-P.
Findings Of Fact In 2007, Borislow bought 6.2 acres of land near the corner of Congress Avenue and Summit Boulevard in West Palm Beach. Borislow proceeded to create a soccer field on the property. The project required the addition of fill, the grading and leveling of the field and a shellrock driveway/parking area, and the installation of sod, an irrigation system, an exfiltration trench for water quality treatment, and lighting. Later in 2007, Borislow's activities came to the attention of SFWMD, which cited Borislow for conducting activities requiring an ERP without applying for and obtaining one. To resolve the enforcement action, Borislow agreed to apply for an after-the-fact ERP. Initially, SFWMD estimated primarily from aerial photography that 0.71 acres of wetlands were filled and impacted. During the permitting process, SFWMD's estimate of direct wetland impacts was reduced to 0.50 acres, and the mitigation required for direct and secondary2 wetland impacts was determined using the Wetland Rapid Assessment Procedure (WRAP).3 It was determined that Borislow's purchase of 0.2 of a freshwater herbaceous wetland credit in the Loxahatchee Mitigation Bank would offset the project's wetland impacts. SFWMD staff determined that all ERP criteria were met.4 Spots stipulated that there are no water quality issues, that no wetland-dependent endangered or threatened species of special concern have been observed at or in the area of the project site, and that the potential use of the site by such species is minimal.5 Spots contends: SFWMD underestimated the extent of impacted wetlands (and, therefore, the amount of mitigation did not offset the wetland impacts); reasonable assurance was not given that the project will not flood the Spots property to the north, in violation of permitting criteria in Florida Administrative Code6 Chapter 40E-4 and SFWMD's Basis of Review for ERPs (BOR); and reasonable assurance was not given that water storage and conveyance capabilities would not be adversely impacted, in violation of the permitting criteria in Rule Chapter 40E-4 and the C-51 basin compensating water storage requirements of Rule Chapter 40E-41, Part III. In normal permitting, existing wetlands are delineated in accordance with Rule Chapter 62-340. In this after-the-fact permit application, former wetlands had to be estimated. Spots reasonably contends that Borislow should not benefit from having filled wetlands without an ERP. But the evidence proved that the former wetlands on the Borislow property were properly estimated. Contrary to the contention of Spots, the wetlands were not estimated on the basis of a single aerial photograph. There were numerous aerial photographs over several years, which the experts could interpret and use to make a reasonable estimate of the extent of the former wetlands on the site. Ironically, while criticizing SFWMD's alleged reliance on a single aerial photograph to determine the extent of the former wetlands, Spots relied on a single aerial photograph to claim that the former wetlands on the Borislow property were deep and larger than 0.5. acres. The photograph appeared to show standing water only on the Borislow property, but it is possible that standing water on the Spots property was obscured by vegetation. In addition, it is impossible to determine the depth of the water from the aerial photograph, and there was no evidence as to the rainfall preceding the aerial photograph. Spots provided no other evidence to support its claim that more mitigation is needed to offset the wetland impacts. On the issue of flooding the Spots property, the evidence was clear that, contrary to the drawings in the ERP, the highest elevations in the northwest corner of the Borislow property are several feet south of the Borislow/Spots property line,7 and several feet higher than the elevation at the property line,8 causing surface water to flow down this slope from the Borislow property onto the Spots property. The evidence proved that no such "back-flow" existed in that location before the project. This "back-flow" can be prevented from crossing the property line by placing a swale or railroad tie or some other similar vertical retaining wall near or on the property line. Borislow has agreed to an additional ERP condition that this be done. The Borislow property is in sub-basin 30 of the C-51 basin. Spots and its engineering expert criticized the engineering calculations used by the experts for Borislow and SFWMD to provide reasonable assurance that the project did not result in a net decrease in water storage capacity in the basin. Spots contended that the calculations incorporated pre- development elevations taken from a 2005 aerial photograph. However, the more persuasive evidence was that the elevations used in the calculations actually came from survey information on surrounding properties, including the Spots property and Summit Boulevard, plus the control elevation in nearby Lake Worth Drainage District L-5 Canal. Elevations for the former wetlands on the Borislow property were assumed to be 10 feet NGVD9 based on the actual elevations of the existing wetlands on the Spots property. The testimony of the experts for Borislow and SFWMD as to the source of the elevations used in the calculations is accepted. The engineering calculations developed by Borislow's expert and accepted by SFWMD indicated a net increase in water storage capacity as a result of grading and leveling the property.10 The calculations compared pre-development and post- development storage capacity between the water table11 and the 100-year storm elevation, which was calculated to be 14.1 feet NGVD. The evidence did not adequately explain how grading and leveling the Borislow property would increase water storage; it would seem that no change in water storage would result. The engineering calculations assumed that no fill was deposited on the property. However, the evidence was that 150 to 300 truckloads of fill, each with 17 to 18 cubic yards, for a total of 2,625 to 5,250 cubic yards, were delivered to and placed on the property. If 300 truckloads were used, this would represent as much as an acre-foot of fill.12 Although the fill would have some water storage capacity, adding that much fill to the property logically would result in a net decrease in water storage capacity in the C-51 basin. This loss was not quantified, or compensated.13 Borislow testified that the fill was used to construct a 13-foot high, 330-foot long, 30-foot wide berm along the western perimeter of the property and another large berm along the northern and southern perimeters of the soccer field.14 But other evidence does not support Borislow's testimony. According to the drawings in the ERP, there are a total of 370 feet of berms, which are required to be a minimum of six inches high to maintain elevation 13.4 feet NGVD to contain the peak stage of a 10-year, 3-day design storm.15 Based on the ground level photographs in evidence, the berms do not appear to be anywhere near 13 feet high or 30 feet wide. In any event, the evidence does not prove that the fill deposited on the property was higher than 14.1 feet NGVD. Regardless of the exact dimension of the berms, it appears that the fill was deposited in a way that would result in a net decrease in water storage capacity in the C-51 basin. SFWMD seems to suggest in its PRO that the fill should be disregarded because there were no records to confirm the dates it was delivered, or the amounts delivered, and because it might have been delivered to an adjacent property.16 But the burden of proof was on Borislow. See Conclusion of Law 16, infra. There was no evidence to prove that Borislow had the fill deposited on an adjacent property. It is more likely that the fill was deposited on the Borislow property in large part to fill the former wetland, which probably was lower than 10 feet NGVD. Spots also charged that Borislow's project essentially obstructs the previous flow of surface water from the wetlands on the Spots property into the wetlands on the Borislow property, such that surface water now backs up on the Spots property. This appears to be true. Since it appears that the wetlands on the Borislow property were lower than the wetlands on the Spots property, grading and leveling would have that effect; adding fill would exacerbate the effect. Spots also argued that the evidence did not provide reasonable assurance on the ability of Borislow's system to recover from a 10-year, three-day storm event, so as to be able to again retain the surface water runoff from a successive storm of that magnitude and duration 12 days later. But the persuasive evidence was to the contrary, primarily due to the major drainage features in the vicinity--namely, the C-51 and the L-5 canals.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that SFWMD deny Borislow's after-the-fact ERP. DONE AND ENTERED this 10th day of August, 2010, 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 10th day of August, 2010.
The Issue Whether FDOT has provided reasonable assurances that the activities it proposes to conduct pursuant to proposed District SWM Permit Application No. 940606-10, WRM Permit Application No. 940606-2-D and modification to ROW Permit No. 2584 will comply with the relevant permit criteria set forth in Chapters 373 and 403, F.S., and applicable rules and criteria promulgated thereunder.
Findings Of Fact THE PARTIES Petitioner, 1000 Friends of Florida (1000 Friends), is a not-for-profit, tax exempt membership corporation, organized and existing under the laws of the State of Florida. The principal office of 1000 Friends is 926 East Park Avenue, Tallahassee, Florida 32314 and it also maintains an office at 3305 College Avenue, Ft. Lauderdale, Florida 33314. Petitioner, Florida Bay Initiative, Inc. (FBII), is an entity incorporated under the laws of Florida with its principal office located at 250 Australian Avenue South, Suite 500, West Palm Beach, Florida 33401. Petitioner, the Florida Keys Fishing Guides Association, is an association of sport fishing guides who live in the Florida Keys and is headquartered at 138 Royal Lane, Islamorada, Florida 33036. Petitioner, Michael Collins, is a private individual. His address is 138 Royal Lane, Islamorada, Florida 33036. Petitioner, Charles W. Causey, is a private individual. His address is Post Office Box 448, Islamorada, Florida 33036. Petitioner, the Florida Keys Concerned Citizens Coalition (FKCC), is a not-for-profit Florida corporation whose address is West Shore Drive, Big Pine Key, Florida 33043. Petitioner, AG Intus, Inc., filed a Notice of Voluntary Dismissal on August 9, 1996. DOAH Case 95-5524, the proceeding filed by Intus, was previously consolidated with the other cases to this proceeding. On August 12, 1996, the Intus case was severed from this proceeding and the Intus hearing cancelled. Respondent, the South Florida Water Management District (the District or SFWMD), is a public corporation in the State of Florida existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, F.S., and Title 40E, F.A.C., as a multi-purpose water management district, with its principle office in West Palm Beach, Florida. Respondent, the Florida Department of Transportation (FDOT), is an agency of the State of Florida. Its District Six address is 1000 N.W. 111th Avenue, Miami, Florida 33172. Intervenor, Monroe County, is a political subdivision of the State of Florida. For the purposes of this proceeding the address for Monroe County is c/o Apgar and Pelham, 909 East Park Avenue, Tallahassee, Florida 32301. The District, FDOT and Monroe County did not object to the standing of the Petitioners at the formal hearing and represented that they will not object to the standing in the event of an appeal. Based on the representations of the Respondents, the Petitioners were not required to put on a case as to their standing. THE THREE PERMIT APPLICATIONS FDOT has applied to the District for a Wetland Resource Management (WRM) permit, a Surface Water Management (SWM) permit, and a Right of Way (ROW) occupancy permit. On June 6, 1994, the Applicant submitted applications for surface water management and wetland resource management permits for the purpose of widening and modifying this 20.4 mile stretch of U.S. 1. The surface water management permit application is identified as Application No. 940606-10. The wetland resource management permit application is identified as Application No. 940606-2-D. On October 24, 1995, the District issued Staff Reports on Permit Application No. 960606-10 and Permit Application No. 94060-2-D. These Staff Reports recommended issuance of the permits subject to general and special conditions as specified therein. An addendum to the staff report was issued November 3, 1995. On September 27, 1994, the Applicant submitted a request to modify its existing ROW Occupancy Permit to enable it to replace the bridge where U.S. 1 crosses the C-111 Canal. The land encompassed by the ROW occupancy permit challenged in this proceeding is located in Section 16 and 17, Township 59 South, Range 39 East, Dade County, Florida. A draft right-of-way occupancy permit with standard limiting and special conditions was produced as part of a package that went to the Governing Board and others. The proposed authorization for use of the ROW is for the following: REMOVAL OF EXISTING U.S. HIGHWAY 1 BRIDGE AND REPLACEMENT WITH A NEW FIXED BRIDGE. PROJECT INCLUDES CONSTRUCTION OF A NEW SERVICE/ACCESS ROAD, 2 DETENTION PONDS, 2 CATCH BASINS, 2-15" R.C.P. OUTFALLS, BOAT RAMP WITH LOADING DOCK, PARKING AREA, PEDESTRIAN GATE AT S-197, FENCING AND WILDLIFE CROSSING ALL WITHIN THE NORTH AND SOUTH RIGHT OF WAY OF C-111 (STATION 938+00 - 955+00). The draft right-of-way occupancy permit modification, identified as “SFWMD PERMIT NO. MOD 2548," should correctly be identified at “SFWMD PERMIT NO. MOD 2584.” The numbers “8” and “4” were inadvertently transposed. STIPULATIONS AS TO APPLICABLE LAW The parties have accurately set forth the applicable permitting criteria and the appropriate Basis of Review in their prehearing stipulation. CRITERIA FOR ROW PERMIT Rule 40E-6.301, Florida Administrative Code, provides, in pertinent part, as follows: In determining whether an occupancy permit should be issued, the District shall consider whether the proposed activity: interferes with the present or future construction, alteration, operation or maintenance of the works of the District; is consistent with the policy and objectives of Chapter 373 F.S., the legislative declaration of policy contained in Section 373.016, F.S. and the state water policy, Chapter 17-40, F.A.C.; has an actual or potential negative impact upon environmentally sensitive areas, which include: wetlands; endangered or threatened species habitat; aquatic preserves; outstanding Florida waters; federal, state and privately owned parks and wildlife management areas; designated areas of critical state concern; lands purchased by federal, state and local governments for the purpose of environmental protection, water resource protection and esthetics; and lands which contain native terrestrial plant species in significant amounts. Environmentally sensitive areas include areas on and off- site that are affected by activities which occur on, or are initiated from, the District’s works; degrades water quality within the receiving water body or fails to meet the provisions of Ch. 373, F.S., the state water policy, and Ch. 40E, F.A.C.; involves a discharge of wastewater from a new wastewater source or an increased discharge from an existing wastewater source; will discharge debris or aquatic weeds into District lands or works or cause erosion or shoaling within the works of the District; is supported by financial assurances, which will ensure that the proposed activity will be conducted in accordance with Chapter 373, F.S., and Chapter 40E-6, F.A.C.; presents an increased liability risk to the District; meets the general and specific criteria in the Basis of Review which is incorporated by reference in Rule 40E- 6.091, F.A.C.; interferes with actual or potential public use of the District’s works or public, recreational or other facilities not within the District’s works; is consistent with local zoning and other private land uses in the area; interferes with the quality or quantity of a public or private water supply; meets applicable criteria in Chapters 40E-61 and 40E-62, F.A.C.; ROW occupancy permits typically have standard limiting conditions which are incorporated as part of the permit. The permit may also have special limiting conditions. CRITERIA FOR PERMITTING THE SWM SYSTEM Rule 40E-4.301(1), Florida Administrative Code, contains the following criteria that, at the times pertinent to this proceeding, were used by SFWMD in determining whether to permit a surface water management system: In order to obtain or modify a permit under this chapter, an applicant must give reasonable assurances that the surface water system: provides adequate flood protection and drainage, without causing over- drainage, will not cause adverse water quality and quantity impacts on receiving waters and adjacent lands regulated pursuant to Chapter 373, F.S., will not cause discharges which result in any violations, in surface waters of the state, of the standards and criteria of chapter 17-302, F.A.C., will not cause adverse on-site or off-site impacts on surface and groundwater levels and flows, including impacts to sources of water supply and wetland hydrology, will not cause adverse environmental impacts, can be effectively operated and maintained, will not adversely affect public health and safety, is consistent with the State Water Policy, chapter 17-40, F.A.C., for a DRI with a signed Preliminary Development Agreement with the Florida Department of Community Affairs, pursuant to section 380.06(8), F.S., provides a surface water management system for that portion of the site approval for development which is able to operate separately from the surface water management system for the balance of the project site and still meet applicable District criteria. meets any applicable basin criteria in chapter 40E-41, F.A.C., will not otherwise be harmful to the water resources of the District, will not interfere with the legal rights of others as defined in subsection 17-40.401(8), F.A.C., is not against public policy, will meet general and specific criteria in the document described in subsection 40E-4.091(1)(a), F.A.C., (0) will meet criteria for isolated wetlands, which are found in Appendix 7 of the document described in rule 40E- 4.091(1)(a), F.A.C., (p) will meet the criteria for above ground impoundments, which are found in Appendix 6 of the document described in rule 40E-4.091(1)(a), F.A.C. The SFWMD has adopted certain procedures and criteria contained in a document, referred to as “Basis of Review for Surface Water Management Permit Applications Within The South Florida Water Management District” (BOR). Subsection 40E-4.091(1)(a), F.A.C. incorporates this document by reference into Chapter 40E-4, F.A.C. The BOR is a document that is “described in subsection 40E-4.091(1)(a), F.A.C.,” within the meaning of Rule 40E-4.301(1), F.A.C. The BOR establishes a rebuttable presumption that water quality criteria are met through specified volumetric retention and detention requirements. These performance based criteria are designed to be flexible. CRITERIA FOR THE WRM PERMIT In 1992 DEP entered into an Operating Agreement with the District, which delegated to the District responsibility for issuing wetland resource management (WRM) permits, which are required for dredge and fill activities in wetlands. Both DEP and the District implement the same wetland resource permit and MSSW permit rules. The District agrees with DEP's interpretation and application of the WRM permitting rules and non-rule policy, and applies the same when issuing such permits. Section 403.918, Florida Statutes (1991), provides the pertinent criteria that must be applied by the District in determining whether to grant or deny the WRM permit. That criteria requires the applicant to provide reasonable assurance that water quality standards will not be violated. In addition, for projects in OFW, the applicant must provide reasonable assurance that the project is clearly in the public interest. THE PUBLIC INTEREST TEST The District is required to balance the following criteria, found at Section 403.918(2)(a), Florida Statutes (1991), in determining whether a project is clearly within the public interest: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. MITIGATION If the applicant is unable to otherwise meet the public interest test, the District shall, pursuant to Section 403.918(2)(b), Florida Statutes, “consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project . . .” The District thereafter re-evaluates the project to determine whether the project, as mitigated, meets the public interest test. The criteria for mitigation is found in Chapters 373 and 403, Florida Statutes, Title 40 E (including the Basis of Review) and Rule 62-312, Florida Administrative Code. Rule 62-312.330, Florida Administrative Code, states the general criteria for evaluating mitigation proposals as follows: The goal of the mitigation proposal shall be to offset the expected adverse impact of the project that have resulted in the project being deemed unpermittable such that the resulting project with mitigation is not contrary to the public interest or, in the case of Outstanding Florida Waters, is clearly in the public interest. Each project must be separately evaluated to determine whether the proposed mitigation is sufficient. Rule 62-312.340, Florida Administrative Code, provides guidelines that are to be used in evaluating proposed mitigation projects. GENERAL DESCRIPTION OF THE PROJECT AREA FDOT proposes to widen a 20.4 mile portion of U.S. 1 in southern Dade County and northern Monroe County. Approximately seven miles of the project area is in Monroe County and approximately thirteen miles is in Dade County. The northern terminus of the project is the intersection of U.S. 1 and Card Sound Road, which is located in Dade County south of Florida City. The southern terminus of the project is the intersection of U.S. 1 and Abaco Road on Key Largo in Monroe County. The corridor of the proposed project passes through Sections 6, 7, 16, 18, 21, 27, 28, Township 59 South, Range 39 East; Sections 24, 25, 36, Township 58 South, Range 38 East; Sections 16, 19, 30, 31, Township 58 South, Range 39 East, Sections 16, 30, 31, Township 60 South, Range 40 East; Sections 25, 26, Township 60 South, Ranges 39 East, Dade and Monroe Counties, Florida. U.S. 1 is the main highway between northern Monroe County and southern Dade County. The only other road between Monroe County and Dade County is Card Sound Road. The Florida Keys is designated as an Area of Critical State Concern, pursuant to Section 380.0552, Florida Statutes. The Dade County portion of the road, north of the C- 111 canal, lies within typical Everglades habitat, which is classified as environmentally protected lands of Dade County. Most of the project corridor in Dade County is part of or adjacent to the Everglades National Park. Valuable wetlands exist throughout the project corridor. The following bodies of water will receive discharges if the surface water management system is permitted: C-111 Canal, Jewfish Creek, Lake Surprise, Blackwater Sound, Barnes Sound, Little Blackwater Sound, Long Sound, Manatee Bay, Sarge Lake, andManatee Creek. The receiving bodies of water are Outstanding Florida Waters (OFWs) or are connected to OFWs. THE EXISTING ROADWAY As it presently exists in the project area, U.S. 1 is a two lane undivided highway with two passing zones that are each one mile in length. Each travel lane on the existing facility is twelve feet wide. The existing shoulder on either side of the road consists of four feet of pavement and six feet of grassed area. FDOT Exhibit 7 accurately depicts the existing roadway typical section. Exotic vegetation, generally limited to the areas immediately adjacent to the highway, exist throughout the project corridor. These exotic species are present because FDOT has failed to properly maintain its right of way. A clear zone is an unobstructed area that includes the shoulder of the roadway and typically extends beyond the shoulder. The purpose of the clear zone is to provide a driver who has lost control of his or her vehicle a sufficient clear recovery area to regain control of the vehicle so that it can be maneuvered back onto the road. The clear zone for the existing road is inadequate to provide a safe recovery area. There is at present a two lane bridge over Manatee Creek, a two-lane bridge crossing the C-111 Canal, a bascule bridge, which is a drawbridge, over Jewfish Creek, and a two lane causeway through Lake Surprise. The two existing passing zones are located in Dade County. The first is south of U.S. 1’s intersection with the C-111 canal between mile markers 113-115. The second passing lane is approximately four miles south of the northern terminus of the project between mile markers 120-122. Each existing passing zone is undivided and consists of two northbound lanes and two southbound lanes, with each travel lane being twelve feet in width. The shoulders in the passing zones are the same as for the typical section. A surface water management (SWM) system is defined by Rule 40E-4.021(5), Florida Administrative Code , as being "the collection of devices, improvements or natural systems whereby surface waters are controlled, impounded, or obstructed.". There is no surface water management system presently associated with the road. The roadbed is elevated approximately five feet above mean sea level according to the National Geodetic Vertical Datum and was constructed on the old railroad bed of the Florida East Coast Railroad. No hydrologic culverts have been placed within the roadbed. Consequently, surface water flow between the eastern and western sides of the road north of the C-111 Canal has been cut off. C-109 AND C-111 CANALS In the 1960's, the C-109 and C-111 canals were constructed as part of an overall water management system in the area. As a result of the roadbed and the canals, water has been impounded on the western side of U.S. 1 at a level higher than on the eastern side. Due to cutoff of waterflow by the roadbed embankment, historic freshwater flow between the eastern and western sides of the project area has been restricted, which has resulted in an adverse impact on the Everglades ecosystem north of the C-111 Canal. The restricted water flow has resulted in less fresh water being available for shorter periods of time. Consequently, aquatic life has had reduced opportunities to develop. The restricted flow also has impeded the ability of aquatic life to reach freshwater areas during times of drought. On the east side of the road marine conditions have displaced what naturally should be freshwater conditions. PROJECT HISTORY While FDOT has been aware of traffic safety and hurricane evacuations concerns on the roadway for a long time, the current project originated in 1986 when Monroe County identified this project as a need in its 1986 Comprehensive Plan. Pursuant to agency practice, the proposed project was incorporated into FDOT's five year work program and a study was performed pursuant to FDOT’s Project Development and Environment (PD&E) Manual. FDOT's PD&E manual describes the process by which FDOT determines whether to construct or improve a road. The PD&E process includes an Environmental Impact Statement (EIS) to analyze existing conditions, assess the need for improvement, and develop alternatives. A Draft EIS is performed and circulated for comment to governmental agencies and the public. Based upon comments and further review a Final EIS is prepared. Metric Engineering ("Metric") began the PD&E study of the project in 1988 pursuant to a contract with FDOT. Metric identified seven factors which it concluded supported the need for the project. First, the improved corridor would improve the linkage between the four lane road at the northern terminus and the four lane road at the southern terminus. Second, the project would improve navigation by replacing the existing bascule bridge at Jewfish Creek. Third, the project would improve the level of service for the road. Fourth, the project would improve the safety of the road. Fifth, the project would improve the clearance time for hurricane evacuation. Sixth, the project was consistent with the long range transportation plans adopted by Monroe County. Seventh, the project would accommodate increased traffic, which can be expected with or without the project. Based on the needs evaluation, Metric performed a corridor analysis to determine the best way to get from Florida City to Key Largo, including improving only Card Sound Road, improving only U.S. 1, or improving a combination of the two. Metric concluded that the best resolution was to improve the project corridor. Metric also analyzed various alternatives in an effort to reduce the size of the typical section of the roadway in the U.S. 1 corridor and thereby minimize environmental impacts of the project. Because of concerns from Everglades National Park that no aspects of the project construction occur within its boundaries, FDOT agreed to conduct all construction east of FDOT's existing right of way line. The conclusions of the Metric studies were memorialized in a Final EIS and Final Engineering Report published in 1992. Conclusions regarding alternatives and project needs were then incorporated into the permit application and have continued to be updated. The 1992 version of the project was for a four lane roadway with four lane bridges throughout the project corridor. Subsequent to its June 6, 1994, permit applications to the District for a four lane roadway, FDOT went through an extensive process of providing the District with additional information in an effort to provide the District with the necessary reasonable assurance that the proposed project would comply with the permit criteria. The final series of modifications contained the three lane alternative, which will be described in detail below and is now the subject of this proceeding. The three lane proposal is a compromise that FDOT agreed to in an effort to minimize the direct, secondary, and cumulative impacts of the project. Monroe County passed Resolution No. 315-1995 on September 7, 1995, asking FDOT to build a three-lane road on a four-lane embankment. This resolution provided, in part, that “. . . Monroe County finds that the '3-lane alternative' as described in the Statement of Agency Commitments is the most viable proposal of those considered, because it balances the needs for a widened highway with safeguards designed to address secondary impacts.” The secondary impacts referred to in the resolution included concerns that two southbound lanes would result in more growth. The rationale behind the resolution was that more growth would result from two southbound lanes than from one southbound lane with the proposed passing zones. In response to the request of Monroe County and in response to a similar request made by the District, FDOT notified the District by letter dated September 5, 1996 of FDOT's decision to redesign the project to change the roadway from four to three lanes. FDOT HAS MINIMIZED THE IMPACTS OF THE PROJECT During the PD&E process prior to permit application FDOT studied project needs and alternative alignments, and conducted corridor analyses. FDOT originally considered a proposal that included approximately 250 acres of wetlands impacts. At the District's suggestion, FDOT revised its proposal prior to the permit application to reduce the wetland impacts and project footprint. The application submitted contained approximately 165 acres of impact. FDOT changed the typical section of the proposed roadway again after substantial interagency coordination in an effort to reduce wetlands impacts even further. FDOT agreed to reduce the footprint by changing the design of the median from 22 feet and a Jersey barrier (which is a minimum barrier) to 20 feet with a tri-beam rail barrier. The more substantial barrier was added because the median was narrowed. Additionally, instead of ten-foot paved shoulders on each side of the median, FDOT would use two-foot paved shoulders with sixteen feet of grass in the middle. These minimization efforts resulted in a wetland impacts decrease from 164 acres to 149.07 acres, the current impact of the project. Avoidance, or choosing alternate routes to avoid impacts to wetlands, was not a possible option because only wetlands and open waters exist between the northern and southern terminus of the project. FDOT explored all reasonable alternatives to the proposed project, including a two lane alternative proposed by a consultant for FBII. As discussed below, FDOT did not adopt the two-lane alternative, because the alternative did not address all of FDOT's identified needs for the project. FBII prepared a report with a two-lane alternative to the proposed project. FBII's original proposal included one 12-foot northbound lane with a 10-foot paved shoulder covered with thermoplastic rumble strips to deter vehicular use of the shoulder. In the southbound direction, FBII proposed a 12-foot travel lane with a 4-foot paved shoulder, essentially the same as currently exists. That proposal was analyzed by Metric Engineering on behalf of FDOT. FDOT rejected the FBII alternative for several reasons. First, though the 10-foot northbound shoulder theoretically may be used by cars during hurricane evacuation, removal of the rumble strips would be impractical due to lack of time to do so under threat of a hurricane, and due to the costs involved. It would be unrealistic to require people to otherwise drive over the rumble strips, without removal, because they are designed to prevent such access. Using the 10-foot shoulder during an evacuation would result in there being no shoulder area to remove accident vehicles from the roadway which would otherwise threaten to restrict the flow of traffic or cease it altogether. The reduced width of the shoulder lane below the standard 12-foot lane would also decrease the flow of evacuees. FBII's proposal for a two-lane fixed-height bridge at Jewfish Creek would not completely eliminate rear-end collisions at the bridge. The two-lane alternative proposed by FBII is not a signed and sealed cross section. The proposal by FBII does not include the area necessary for a SWM system or for clear zones. FBII did not do an analysis to determine whether its proposal complies with pertinent FDOT roadway and traffic design standards or with pertinent highway safety and improvement standards. The FBII proposal does not account for removal of the Lake Surprise causeway or construction related impacts from barge traffic. FBII did not do a wetlands survey to determine the impact of its two-lane proposal. At the Final Hearing, Petitioners presented for the first time a new proposal to use "flexible diverters" to pave a third northbound lane and to block that lane from travel traffic with poles. However, no research was conducted into the feasibility of such a proposal, nor was it adequately thought out. Such a use of "flexible diverters" is unprecedented in FDOT's history, is impractical to implement, and would violate FDOT's design standards contained in its Manual on Uniform Traffic Control Devices. Petitioners also presented for the first time at the Final Hearing a proposal to add an 8 to 10 foot paved northbound shoulder which could be converted to a travel lane with traffic control cones in the event of an evacuation. This plan is also not feasible, because the resulting lanes would not be wide enough to safely accommodate evacuating traffic, and because the contradiction between existing road striping and the placement of cones would likely cause accidents, which would halt evacuation. The proposals submitted by FBII do not sufficiently improve hurricane evacuation or traffic safety and, consequently, are not acceptable alternatives to the project. FDOT can do nothing else to minimize the impacts of the project and still address the needs for the project. Minimization of wetlands impacts was accomplished to the greatest extent possible. FDOT has proposed mitigation to offset the impacts that could not be avoided. THE PROPOSED PROJECT - IN GENERAL STIPULATION AS TO DESIGN AND CONSTRUCTION Petitioners stipulated that the design and construction specifications of the roadway proposed to be permitted in this case comply with all applicable design and construction standards for structural integrity, and adequately describe the three-lane divided roadway proposed to be constructed on a four-lane roadbed/embankment. PROPOSED LANES, SHOULDERS, AND MEDIAN FDOT proposes to widen the roadway in the project area to a three lane divided roadway with two northbound lanes and one southbound lane, plus three passing zones. The proposed project will be constructed on a four lane roadbed embankment. FDOT does not presently have plans to add the fourth lane to this roadway. FDOT Exhibit 8 contains an accurate description of the proposed typical section of the roadway. The typical section will consist of two twelve-foot northbound lanes with a six-foot paved shoulder and a four foot stabilized area adjacent to the paved shoulder; a twenty-foot median consisting of a two-foot paved shoulder, sixteen feet of grass and a tri-beam guardrail in the middle as a separator; and one twelve-foot southbound lane with an eight-foot paved shoulder. The proposed typical section also includes a storm water management system that will be described in more detail below. The proposed typical section includes a clear zone thirty feet in width, which is adequate. THE THREE PASSING ZONES The existing passing zone located in Dade County between mile markers 113 and 115 is one mile in length. FDOT proposes to alter this passing zone to 1.44 miles in length. The existing passing zone located in Dade County between mile markers 120 and 122 is also one mile in length. FDOT proposes to alter this passing zone to 2 miles in length. In addition, FDOT proposes to construct a 1.5 mile long passing zone between mile markers 110 and 112 in Monroe County. If permitted, the proposed project will include 2 passing zones in Dade County and 1 passing zone in Monroe County, for a total of 3 passing zones. The total length of the passing zones will equal 4.94 miles. ELEVATION There are no plans to change the elevation of the existing roadway. HYDROLOGIC CULVERTS The project contemplates the construction of 25 hydrologic culverts north of the C-111 Canal. These culverts will remain capped until further hydrological studies are completed and input from all concerned regulatory agencies can be obtained. It has not yet been determined how these culverts will be utilized to maximize the improvement to the ecosystem north of the C-111 Canal. WILDLIFE CROSSINGS INCLUDING THE C-111 BRIDGE The project contemplates the construction of three wildlife crossings north of the C-111 Canal in Dade County with fencing designed to funnel wildlife through the crossing. These crossing, sometimes referred to in the record as “panther crossings” are located between mile markers 118-119, 122-123, and 126-127 and will be constructed as overland bridges. In addition, the replacement bridge over the C-111 Canal (located between mile markers 116-117 in Dade County) is intended to serve as a wildlife crossing and will also employ fencing to funnel wildlife through the crossing. All four of these structures will be constructed as four-lane bridges, but will be striped for three lanes with rumble strips on the southbound fourth lane to discourage vehicular traffic in that lane. There will be an eight foot outside shoulder. FDOT proposes to construct 18 culverts south of the C-111 Canal for crossings by crocodiles, alligators, manatees, and other wildlife. These crossings will consist of 15 box culverts and 3 bridges. MANATEE CREEK BRIDGE The proposed bridge at Manatee Creek would be constructed as a four lane bridge, but would be striped for three lanes with rumble strips on the southbound fourth lane to discourage vehicular travel in that lane. There would be an eight foot outside shoulder. BRIDGING JEWFISH CREEK AND LAKE SURPRISE Jewfish Creek, which is part of the Intracoastal Waterway, and Lake Surprise would be bridged by a continuous structure. The Jewfish Creek bascule bridge would be replaced by a high-level four-lane fixed bridge. The Lake Surprise causeway would be replaced by a low-level four-lane bridge. The total distance for this bridging is approximately 2.35 miles. AREA OF PROJECT THAT WILL BE OPERATED WITH FOUR-LANES The three passing lanes (4.94 miles) and the bridge over Jewfish Creek and Lake Surprise (2.35 miles) would be operated with four lanes. Those areas total 7.29 miles of the 20.4 mile project corridor. Approximately 43 percent of the proposed roadway would have four lanes of pavement. Excluding the areas where the fourth lane will be blocked from travel with rumble strips, only 35 percent of the completed project will contain four travel lanes. This area consists of the three passing zones and the bridges over Jewfish Creek and Lake Surprise. THE PROPOSED SWM SYSTEM The proposed project would provide for a SWM system consisting of inlets, culverts, swales, berms and dry/wet retention areas. For the typical roadway section, runoff from the paved roadway surfaces will be directed to roadside swales designed to provide retention for 50 percent of 2.5 inches times the impervious area. The SWM system for the bridges will collect runoff in inlets and culverts and direct it to either swales or dry or wet retention ponds. The berms of the SWM system provide additional protection by restricting spills of pollutants, such as petroleum from overturned tankers or other vehicle accidents, from running into the surrounding waters. The berms and swales of the SWM are designed to catch pollutants and prevent their discharge into the surrounding waters. FDOT Exhibit 18 consists of four separate drainage reports submitted to the District in 1995 in connection with the project, one report for each section of the project. The reports accurately document the drainage calculations, the drainage design, the rationale behind the drainage design, and compliance of the design with the laws and regulations of the permitting agencies for the original four-lane proposal. On or about September 5, 1995, FDOT submitted revised drainage calculations to the District, determining the amount of stormwater treatment for the three-lane project. The revised calculations established that at least 95% percent of all stormwater runoff from the project would be captured in the proposed SWM system. Because the swale design was based on the originally proposed four-lane road, retention will be in excess of the required volume for most sections of the roadway. The required retention volume for this project is approximately 166 percent of what is required by the BOR. The surface and subsurface geology of the roadway consists of Miami oolite limestone overlain with Perrine maral. Underlying this is Thompson formation, anastasia and Key Largo limestone. Based on these constituencies, the swales proposed by the SWM system would be effective in rapidly removing heavy metals and phosphorous. The revised calculations established that approximately five percent of the project area will not have a SWM system. These areas will not have a SWM system because properly-sized retention systems in those areas can not be constructed without causing a disproportionate, adverse impact to surrounding wetlands. FDOT has provided reasonable assurances that the proposed SWM system’s total water quality treatment exceeds the District's permitting requirements and provides sufficient treatment to exceed the BOR requirements. The water discharged from the proposed system would be of higher quality than that currently discharged, which is not treated. FDOT has provided reasonable assurances that the proposed SWM system complies with the permitting criteria found in Rule 40E.301(1)(a)-(p), Florida Administrative Code. The following findings are made as to that criteria. Rule 40E-4.301(1)(a), F.A.C. The parties stipulated that Rule 40E-4.301(1)(a), F.A.C., pertaining to flood protection and the adequacy of drainage, is not at issue in this proceeding. Rule 40E-4.301(1)(b), F.A.C. The quality of water being discharged from the SWM system will be of substantially higher quality than the existing discharges. Consequently, it is concluded that the system will not cause adverse water quality impacts within the meaning of Rule 40E-4.301(1)(b), F.A.C. In addition, the evidence established that there will likely be less water discharged from the roadway if the project is constructed because of the amounts of water that will likely be retained in the swales that are a part of the SWM systems. Rule 40E-4.301(1)(c), F.A.C. Because the receiving bodies of water are designated Outstanding Florida Waters, the District is required to apply the DEP's most stringent water quality requirements -- the antidegredation requirements for discharge to OFWs, to this project. Those standards will be discussed in more detail below. The evidence established that the proposed project will not violate those requirements. Rule 40E-4.301(1)(d), F.A.C. Impacts to sources of water are not at issue. The District reviewed the potential effect of the SWM system upon on-site and off-site impacts to surface or groundwater levels and flows. The evidence supports the District's conclusion that no adverse impacts will be caused. Petitioners failed to present any evidence on groundwater levels and flows. Consequently, it is found that the criteria found at Rule 40E-4.301(1)(d), F.A.C., has been satisfied. The 25 hydrologic culverts north of C-111 have the potential to re-establish historic surface water flow in the area. They were sized, based on rainstorm events, to help equalize water levels from one side of the road to the other. The culverts are capable of transferring water from west to east to assist in the historic restoration of flows. In order to assure the proper usage of the culverts, they will remain gated until the District develops a management plan in conjunction with other agencies. The District will determine the maintenance entity. The FKAA water main runs beneath this section of the road. As a result, there is no other more hydrologically efficient alternative for the placement of the culverts. The culverts would also provide a means for overwash from storm events, over the U.S. 1 roadbed, to flow back to its point of origin, stabilizing the roadbed and allowing release of the accumulated salt water. Rule 40E-4.301(1)(e), F.A.C. In addition to providing for a net improvement in water quality, the project will offset any adverse impacts through mitigation and other environmental enhancements for which no mitigation credits are being assigned, as described below. Rule 40E-4.301(1)(f), F.A.C. FDOT has a history of adequate maintenance of SWM systems, and has provided reasonable assurance that it has the staff and budget to comply with District operation and maintenance requirements. FDOT will also be able to comply with the District's requirements to control exotic plants and other foliage along project corridor. Rule 40E-4.301(1)(g), F.A.C. The SWM system will not adversely affect public health and safety. The dispute as to the public interest test focused more on the WRM permitting requirements. Findings as to the public interest test are discussed in more detail below. Rule 40E-4.301(1)(h), F.A.C. The evidence established that the SFM system is consistent with State Water Policy. Rule 40E-4.301(1)(i), F.A.C. This project does not pertain to a DRI and, consequently, this criteria is not applicable. Rule 40E-4.301(1)(j), F.A.C. There are no basin criteria applicable to this project. Rule 40E-4.301(1)(k), F.A.C. The evidence established that the SWM system will not be harmful to the water resources of the District. While there will be adverse environmental impacts caused by the project, those adverse impacts have, as will be discussed in more detail below, adequately offset by mitigation. Rule 40E-4.301(1)(l), F.A.C. This issue was not at issue in this proceeding. Rule 40E-4.301(1)(m), F.A.C. As will be discussed in greater detail in a subsequent section of this Recommended Order, the project is not against public policy. For the reasons set forth in that subsequent section, it is found that the project is clearly in the public interest. Rule 40E-4.301(1)(n), F.A.C. Rule 40E-4.091(1)(a), F.A.C., constitutes the BOR. As discussed in detail above, the SWM system complies with the BOR. Rule 40E-4.301(1)(o), F.A.C. There are no isolated wetlands pertaining to this project. Rule 40E-4.301(1)(p), F.A.C. There are no above ground impoundments, as described in Appendix 6 of the BOR, pertaining to this project. WATER QUALITY - DISCHARGES INTO OFW Because the project will involve discharges into Outstanding Florida Waters, it was necessary for FDOT to establish that the discharges from the SFW system will not degrade those OFWs. The evidence established that FDOT's proposed project complies with and exceeds applicable water quality standards and permitting criteria. There will be no significant degradation of ambient water quality as a result of the project. It is expected that there will be a net improvement in ambient water quality resulting from the proposed project, as opposed to the continued degradation if nothing is done to treat stormwater runoff. In FDOT Exhibit 46, FDOT provided baseline water quality data in the form of STORET data for waters adjacent to the project area. STORET is a centralized repository and database for water quality data throughout Florida. It is Florida's principal source of water quality data. STORET contains the best scientific database on water quality in Florida. The STORET data set forth in FDOT Exhibit 46 provided sufficient evidence on ambient water quality for the waters adjacent to the proposed project. In addition to providing the water quality data in FDOT Exhibit 46, FDOT is required by Special Permit Condition 37 to submit appropriate water quality data in the surrounding waters prior to any construction activities. SFWMD Exhibits 5 and 6 contain amendments to Proposed Agency Action made after the beginning of the formal hearing. These amendments include a requirement that an appropriate water quality monitoring plan be submitted within 30 days of the permit issuance. FDOT has provided reasonable assurances that water quality standards will be met and that there will be appropriate water quality monitoring during construction. DIRECT IMPACTS OF THE PROJECT The proposed roadway design will result in the following direct impacts to wetlands adjacent to the roadway corridor: 1) the dredging of 11,028 cubic yards of material from 2.1 acres, 2) the placement of 1,689,553 cubic yards over 147.0 acres of wetlands, and 3) 6.9 acres of (potential) permanent impact due to shading and 4.1 acres (potential) of temporary impacts from the Jewfish Creek Bridge construction activities to seagrass habitat. In order to determine the project's direct impacts, the area surrounding the project was surveyed to determine the number of affected acres. This was done by using a computer aided design ("CAD") system, and by categorizing the various forms of wetlands and associated flora and fauna into the following communities: mangrove, emergent freshwater, open water, and tidal, consisting of seagrass and non-vegetated bottoms. Using these categories and the CAD system, every square foot of direct impacts were accounted for. The adverse direct wetland and surface water impacts of this project are as follows: 1) 27.83 acres Non- Vegetated Tidal Bottom; 2) 11.27 acres Seagrasses; 3) 46.85 acres Mangroves; 4) 42.35 acres Sawgrass/Cattail/Spikerush; 5) 14.31 acres Shrub Wetlands; and 6) 6.46 acres Open Fresh Water; totaling 149.07 acres. Though some wetlands to be impacted may be of lesser quality, FDOT stipulated that all wetlands to be directly impacted by the project should be considered to be high quality wetlands for the purpose of mitigating the impacts. The impacted wetlands are part of larger wetland systems. Petitioners assert that the District should have required studies as to impacts as to the larger wetland systems. The evidence established that the District appropriately considered the type and location of the wetlands involved so that additional study suggested by Petitioners was unnecessary. Petitioners also assert that impacts to isolated wetlands should have been studied. The evidence established that there will be no such impacts. SECONDARY AND CUMULATIVE IMPACTS RECOGNIZED BY SFWMD In addition to the direct impacts of the project, the District is required to analyze secondary and cumulative impacts. A project's secondary impacts are those that, though outside of the project footprint, are very closely linked and causally related to the project. This is a "but for" test. Secondary impacts are those impacts which, if not for the proposed project, would not occur. Both positive and negative secondary impacts are considered. When there are both positive and negative secondary impacts caused by a project, the permitting agency must consider the severity of the impacts and balance these together with the other factors in the public interest test to determine whether or not the project is clearly in the public interest. WRM statutes, and DEP rules and policies pertaining to those statutes do not regulate growth or traffic increases, per se. Only if such increases are very closely linked and causally related to the project will they be considered. The District identified several secondary impacts that would be temporary in nature since they would occur while the project is being constructed. One is the use of a barge facility, primarily at Jewfish Creek, where the anchoring of the barge may result in temporary impacts to seagrass during construction. This impact is addressed by a component of the seagrass mitigation at Boca Chica, discussed below. Another impact is turbidity associated with the dredge and fill and the barge activities. That issue is appropriately addressed by permit conditions, through the use of turbidity control screens and other techniques. The District also identified secondary impacts directly associated with the project footprint that would be permanent in nature. The removal of the exotic vegetation potentially opens up the areas adjacent to the road north of the C-111 canal to off-road vehicles or four-wheel driving and the potential impacts caused by those vehicles. That impact is appropriately addressed by fencing north of the C-111 canal. When a road is widened, animals have a greater distance to travel back and forth from one side of the road to the other. A wider road exposes such animals to greater risk of being hit by a motor vehicle while crossing the road. That impact is addressed in this project by the fencing, the wildlife crossings, and the wildlife box culverts. The crossings are designed for large mammals and some species, such as the Indigo snake, will likely not use these crossings. The wildlife crossings will not entirely mimic the crossing patterns of all wildlife that need to cross U.S. 1 and will result in some wildlife habitat fragmentation. The fencing that will be erected to funnel wildlife through the crossings will fragment the habitat of some species by altering wildlife crossing patterns and blocking access of some species to certain areas of habitat. The greater weight of the evidence established that any habitat fragmentation should, when compared to existing conditions, be minimal. The District appropriately evaluated the advantages and disadvantages of using wildlife crossing and hydrological culverts and appropriately concluded that there would be a net benefit to wildlife as a result of their construction. The District properly concluded that the culverts, bridges and fencing located south of the C-111 canal, construction of wildlife crossings and fencing north of the C- 111 canal, construction of the hydrologic culverts, and removal of the Lake Surprise Causeway are positive secondary benefits of the project. These benefits should be considered when applying the public interest test. THE FKAA PIPELINE RELOCATION The project requires the relocation of two segments of the existing pipe owned by the Florida Keys Aqueduct Authority (FKAA) around Jewfish Creek Bridge. The segments total approximately 1.5 miles. The District inspected the area where the pipeline will be relocated to assist in determining its impact. The pipeline relocation is a temporary disturbance during construction. It is a small linear facility, which will not generate pollution in and of itself. The pipeline relocation is not expected to result in a violation of State water quality standards. The FKAA is responsible for obtaining the necessary permits for the relocation. Direct impacts to wetlands will occur in a 4 to 5 foot wide strip along the length of the relocated aqueduct. The FKAA has submitted a permit application to the DEP for a permit to relocate the aqueduct. DEP believes that adequate mitigation can be achieved to make the project permittable. Once the FKAA submits an adequate mitigation plan, then relocation of the aqueduct will not be an adverse secondary impact caused by the U.S. 1 project. The permit for the subject project should contain a condition that the FKAA obtain a permit for the relocation of these two segments of its pipeline. THE C-111 BOAT RAMP There is an existing boat ramp designed for small boats to access District canals that is located on the north side of the C-111 canal. As a result of the proposed project, it will be relocated to the southern side of the project. This relocation is a relatively minor project requiring a cut in the canal bank and a fourteen-foot wide slab for the boat ramp. When the District considered the potential impacts associated with this relocation in conjunction with the impact of the proposed project, it was determined to be a relatively insignificant impact in terms of the project as a whole. Relocation of the boat ramp is not expected to result in a violation of state water quality standards. All direct, cumulative, and secondary impacts, whether positive or negative, should be considered in balancing the public interest test. ARE THERE ADDITIONAL SECONDARY AND CUMULATIVE IMPACTS Petitioners assert that there are additional cumulative and secondary impacts that the District failed to consider. Petitioners argue that the project cannot meet permitting criteria if those additional impacts are considered. The additional impacts pertain to additional development throughout Monroe County because of the “rate of growth ordinance” (ROGO), additional development along the project corridor, impacts to the coral reefs of the Keys, impacts to Key Deer, generalized impacts, and impacts from increased number of “day trippers." For the reasons discussed below, it is found that the District has considered all appropriate direct, secondary, and cumulative impacts of the project. The additional impacts that Petitioners assert should have been considered are not causally connected or directly linked to the project. THE RATE OF GROWTH ORDINANCE Monroe County adopted its Year 2010 Comprehensive Plan (the "Plan") to meet the requirements of Chapter 163, F.S. The Plan, adopted May 15, 1993, is unusual in that the County limits future growth based on a carrying capacity analysis of its hurricane evacuation clearance time. No other jurisdiction in Florida, and few others in the United States, have used a carrying capacity planning approach. To implement the carrying capacity limitation, Monroe County determined the total number of dwelling units that could be permitted while maintaining an acceptable hurricane evacuation clearance time of 24 hours. This number of dwelling units, less an allowance for vested development and development in municipalities, was the basis for a ROGO that was adopted by the County in 1992. The ROGO allocates the available units at a uniform annual rate of growth (currently, 255 units per year). The ROGO regulates all proposed new residential buildings, including hotels, motels, and other transient tourist accommodations as well as permanent residences. The number of building permits that Monroe County can issue is, at present, directly related to how rapidly the County can be evacuated in the event of a hurricane. The lower the clearance time, the greater the number of permits that can be issued. The Comprehensive Plan requires that the County be able to evacuate within a 24-hour period. As of March 7, 1995, the hurricane evacuation time for Monroe County was determined to be 21.25 hours.1 The project is expected to reduce by six or seven hours the modeled hurricane evacuation capacity for Monroe County, regardless of whether it consists of three or four lanes. This is because both the three lane and four lane plans provide for two northbound lanes. Because of the rate of growth provisions in county law, this reduction of clearance times results directly in an increase in the number of building permits that the county can issue annually. Under ROGO, Monroe County can, with this project, issue 255 permits each year through the year 2026. Without this project, Monroe County can issue 255 permits each year only through the year 2001. Alternatively, without this project, the county can issue 88 permits each year through the year 2010 if it chooses to issue permits over a longer period of time. Following extensive litigation before the Division of Administrative Hearings in an unrelated proceeding2, the Administration Commission entered a final order on December 12, 1995, that approved approximately 97 percent of the Plan. In addition, the Administration Commission has published a proposed rule to bring the remainder of the Plan into compliance and assure its financial feasibility. The central feature of the proposed rule is a five- year work program, with annual reviews by the Administration Commission. It is likely that the proposed rule will eventually result in the complete revision of the ROGO. The proposed rule provides that Monroe County's annual rate of growth be revised within five years, no later than December 31, 2001, "to establish a rate of growth and a set of development standards that ensure that any and all new development does not exceed the capacity of the county's environment and marine systems." A carrying capacity study will comprehensively assess water quality, habitat protection, and public facility issues to determine the capacity of the Keys to sustain further development. The proposed project is but one of many factors that will be considered in future rate of growth regulations. If the expected revisions occur, it would be speculative to predict what development would be allowed. While the studies are underway the rate of growth will remain at 255 units per year. The rate of growth will be reviewed annually, and may be reduced a minimum of 20% if the goals of the studies are not being met. The DCA has determined that Monroe County’s Comprehensive Plan and its land development regulations are sufficient to prevent or mitigate any potential adverse secondary impacts of the project caused by development. The DCA has consistently supported the proposed project, even in its earlier four-lane configuration, because it was consistent with Monroe County's 1986 Comprehensive Plan, and because the project would improve hurricane evacuation clearance times and improve water quality in the vicinity of the roadway. The 1986 plan supported widening of the roadway to four lanes based on projected travel demand. The DCA prefers the current, three-lane proposal to the earlier four-lane. On September 7, 1995, the Monroe County Commission adopted Resolution 315-1995 in support of the proposed project because "it balances the needs for a widened highway with safeguards designed to address secondary impacts." Lorenzo Aghemo, an expert in comprehensive planning, served as Monroe County Planning Director during the development of the Plan and ROGO. In Mr. Aghemo's opinion, the widening of the roadway to either three or four lanes would generate minimal growth pressure in Monroe County, particularly because the Plan limits the rate of growth. Because the Keys are designated by Section 380.0552, F.S., as an area of critical state concern, the DCA is charged with oversight of Monroe County's Comprehensive Plan, its LDRs, and all development that takes place in Monroe County. Additionally, the Administration Commission may amend Monroe County's plan or regulations by rule (See Section 380.0552(9), F.S.). There is virtually no action that Monroe County can take related to the use of land without review and approval of a state agency. The Administration Commission’s proposed rule demonstrates its intent to revise comprehensively Monroe County's ROGO within five years to ensure that future development does not exceed the capacity of the Keys' environmental resources. It also demonstrates the Administration Commission's intention to closely monitor growth and development in the Keys during the five-year study period. Some of the studies required by the proposed rule are already underway: 1) the DCA has entered into a contract with the ACOE to complete the environmental carrying capacity study; 2) the HRS study of advanced on-site waste water treatment systems is underway; 3) Monroe County is developing the required Marathon central sewer facilities plan; and 4) Monroe County and HRS have begun the cesspit identification and elimination process. Caution should be exercised in relying on this or on any other proposed rule. Likewise, caution should be exercised in relying on changes to ROGO that may or may not occur. It is likely that the present status of the law will be changed in the near future so that future development will be based on environmental carrying capacity as opposed to hurricane evacuation clearance times. However, for the purposes of this proceeding the District should accept the fact that the issuance of future building permits is closely linked and causally related to the project. Consequently, it is found that under the present status of the law, the issuance of additional building permits in Monroe County is closely linked or causally related to the project. MONROE COUNTY LDRS AND DCA OVERSIGHT Although Petitioners established that there is a causal relation between the project and the existing status of the law governing the number of building permits that can issued in the future, the evidence was insufficient to establish at a level above speculation that adverse environmental impacts will result because of the issuance of those building permits. The Monroe County Comprehensive Plan contains land development regulations that govern all development in Monroe County. These regulations are among the most stringent in the State and are designed to avoid or minimize adverse environmental impacts caused by development. All development orders in Monroe County are closely scrutinized by the Department of Community Affairs to ensure compliance with applicable permitting criteria. Those regulations and the DCA’s close scrutiny are intervening factors that break any causal relation between the project and the speculative adverse environmental impacts that the Petitioners assert will be caused by future issuance of building permits by Monroe County. Petitioners failed to establish that the impacts of future development are very closely linked or causally related to the project. Consequently, it is found that such impacts are not secondary or cumulative impacts of the project. DEVELOPMENT ALONG THE PROJECT CORRIDOR A major portion of the area next to the road has little or no development potential because it is either water, land in public ownership, or land slated for public ownership. The areas east of the road are mostly in private ownership, but are primarily submerged lands and mangrove areas. The Crocodile Lakes National Wildlife Refuge is federally owned and is managed by the U.S. Fish and Wildlife Service (USFWS). The Southern Glades lands, located immediately west of the project and Everglades National Park (ENP) in Dade County, have been acquired by the District and are managed by the Florida Game and Freshwater fish Commission (FGFWFC). The Model Lands Basin in Dade County is in private ownership but proposed for public acquisition in the future. The land adjoining the roadway in Dade County is designated as open area or environmentally sensitive. Almost half of the land along Monroe County's portion of the roadway is in public ownership. At least 90% of the land in private ownership is mangroves or wetlands that cannot be developed. The small area of uplands is currently being used by a resort marina which will not be allowed to develop further under the new comprehensive plan. There is very little potential for future development in the project area. The comprehensive plan designation for areas in Dade County are open space, and the ones in Monroe County have the conservation designation. The District's regulatory programs consider areas adjacent to the project as sensitive wetland habitats. Based on the District's regulatory authority and comprehensive plan designation for those lands, which would have to be obtained prior to obtaining a permit for development, it is very unlikely that those lands could be developed. Florida Rock and Sand Co. (FRS) has a permit to mine approximately 1,100 acres of wetlands. As part of its mitigation program, FRS will donate this land to the District once its mining and mitigation projects are complete. The FRS mitigation lands are preserved as a permit condition and will ultimately be transferred to the District. This land will not be developed. In addition, the District established that the U.S. 1 project and the FRS project do not constitute a cumulative impact that the District failed to consider. The evidence established that development along the project corridor will not be a secondary or cumulative impact of the project. IMPACTS ON CORAL REEF SYSTEM The evidence was insufficient to establish a close link or causal connection between the project and the coral reef system. As reflected elsewhere, it is found that there will be no degradation of ambient water quality as a result of the project. Therefore, there is no need to resolve the conflicting testimony as to the present status of the coral reef system. IMPACT ON KEY DEER There are no key deer in the project area. The nearest key deer habitat, Big Pine Key, is approximately 70 miles from the southern terminus of the project. The evidence is insufficient to establish that there is a very closely linked and causally related connection between the project and key deer mortality on Big Pine Key. GENERALIZED IMPACTS The Petitioners presented certain opinion testimony that the Keys cannot be developed in an environmentally sensitive manner because of potential adverse impacts of new development in Monroe County, or new boats operating in the waters of the Florida Keys. The credibility of that testimony need not be evaluated because the evidence was not sufficient to tie those generalized concerns into the specific regulatory criteria of the permitting agency. There was insufficient evidence to establish that those alleged impacts would be very closely linked or causally related to the proposed project. DAY TRIPPERS Induced demand is new travel that occurs solely because additional capacity is added to a highway. Petitioners' transportation experts, Michael Replogle and Robert Morris, testified that FDOT's traffic studies, and FDOT's projected rate of traffic growth of approximately 3 percent annually, are incorrect because the studies do not predict the amount of "induced demand" that would result from the proposed project. Petitioners assert that induced demand would generate an unknown number of people who drive to the Keys for the day from south Dade County, referred to as “day trippers,” will have an impact on the Keys that has not been evaluated. The assertion that this potential impact has not been analyzed is rejected as being contrary to the greater weight of the evidence. Induced demand is accounted for in Monroe County's Long Range Transportation Plan, which was never evaluated by Mr. Replogle or Mr. Morris. The Long Range Transportation Plan was prepared by an experienced traffic engineering consulting firm, Barton-Aschman, using an FDOT- approved traffic demand model, the FSUTMS model, that includes all traffic generators and attractors, and all travel on U.S. 1 on weekdays and weekends. The FSUTMS model does not restrict demand based on the existing road capacity. The model uses an "unrestrained assignment" that incorporates the total predicted trip generation on recreational facilities, hotels, and all other attractors. The Long Range Traffic Plan was used to develop the Monroe County Comprehensive Plan, which takes into consideration the projected increases in traffic and makes appropriate provisions for those increases. FDOT has provided reasonable assurances that it has properly projected the amount of traffic for the project corridor after the project is completed and that the projected increases have been appropriately addressed by Monroe County's Comprehensive Plan. MITIGATION - IN GENERAL For the reasons discussed above, it is found that there are no secondary or cumulative impacts that the District failed to consider. Petitioners also contend that the mitigation proposal is insufficient to offset the direct and secondary impacts recognized by the District. This is a large dredge and fill project that will permanently fill 149 acres of wetlands. The wetlands that will be adversely impacted by the project include OFWs that provide a great variety of functions and serve as habitat for fish and wildlife, including threatened and endangered species. The wetlands are unique and of high quality. Mitigation for direct, secondary and cumulative impacts was considered as part of the permit evaluation. In- kind mitigation is considered to be most effective, but out- of-kind mitigation may be offered by the applicant where it is impractical to conduct in-kind mitigation due to historic changes in the project area or sensitivity of the habitat type for which mitigation is offered. Such mitigation is also appropriate to address regional alteration of an ecosystem, such as the Everglades ecosystem alteration caused by the original roadway embankment. FDOT developed a conceptual mitigation plan that took into account project impacts on the freshwater, marine and estuarine components of the ecosystems involved, as well as the impacts on threatened and endangered species of wildlife which may be affected by the project. FDOT coordinated the plan's development with the National Parks Service, U.S. Fish and Wildlife Service, the Army Corps of Engineers, the National Marine Fisheries Service, the U.S. Environmental Protection Agency, the Dade County Department of Environmental Resources Management, the Florida Game and Fresh Water Fish Commission, and the Florida Department of Environmental Protection. The conceptual mitigation plan evolved as a result of project modifications and agency comments into what is now proposed as mitigation for the project. The current proposal is summarized in FDOT Exhibit 26, consisting of Attachment H to FDOT's SWM and WRM permit applications. The timing of their construction falls into two general categories: mitigation previously permitted and concurrent mitigation. UPFRONT MITIGATION Typically, mitigation is done concurrently with project construction rather than prior to permit issuance. Mitigation is often done afterwards because of construction timing constraints. Here, FDOT applied for and, in May 1994 received, permits to conduct mitigation prior to applying for the permits at issue, with the understanding that performance of these activities does not require the District to issue permits for the proposed projects. A total of 385.22 acres of mitigation has already been completed. The applicant received 203.02 mitigation credits from the District on May 12, 1994, for several mitigation projects that the applicant proposes to apply to the proposed U.S. 1 widening project provided it is approved. Table 2 of Attachment H to FDOT Exhibit 26 sets forth the four mitigation projects that constitutes the up- front portion of the mitigation for the project. This table sets forth the acres mitigated, the conversion factor for the mitigation, and the resulting mitigation credit awarded. The four mitigation activities already authorized are: enhancement of the wetland habitat in the Harrison Tract located adjacent to Barnes Sound within the Crocodile Lakes National Wildlife Refuge on the north end of Key Largo (70.37 acres credit for 252.6 acres of restoration); removal of the spoil mounds on the eastern bank of the C-111 canal east of U.S. 1 located on the District’s ROW (10.65 acres credit); the back filling of the C-109 canal levee located on the District ROW within the Southern Glades Save Our River project (112.7 acres credit); and the removal of the roadside spoil mounds on the west side of U.S. 1 located between C-111 and the Dade Work Camp Road within the District’s Southern Glades Save Our Rivers Project (9.30 acres credit). The mitigation projects pertaining to the roadside spoil removal along U.S. 1, the backfill of the C-109 Canal, and the removal of spoil along the C-111 Canal are similar projects because they each involve existing deep ditches cut through wetlands. When these deep ditches were cut, the spoil material from the ditch was deposited alongside the ditch. This resulted in areas that were previously Everglades wetlands becoming spoil, supporting the growth of exotic species and, for the most part, not exhibiting wetland functions. FDOT is proceeding with the backfilling the C-109 canal located between mile markers 122.5 and 117, and removal of the corresponding spoil mounds created during construction of the C-109 canal. In connection with this mitigation, marsh areas, tree islands and deep water aquatic refugia have been restored. In this area, there has been considerable attraction of wildlife subsequent to restoration, including otters, alligators, and turtles, which could not previously use the habitat because the canal was too deep. Upon completion waterflow between the east and the west will be restored, and the area will be restored to a wetland habitat from its current uplands habitat type. Backfilling of the C-109 canal is part of an interagency effort with the ACOE to restore as closely as possible to natural conditions the flow of water in the C-111 watershed area. C-111 mitigation includes removal of roadside spoil along the C-111 canal to restore the natural condition of the area. The mitigation was devised in coordination with the National Maine Fisheries Service (NMFS), which required mitigation for non-vegetated habitat types. Restoration also includes preserving some spoil areas as islands to maintain habitat for endangered species of plants. When the C-111 spoil mounds are scraped down, the fill will not fill the whole ditch. The ditch will, therefore, be a bit more valuable but will not be completely restored to its former elevation. FDOT will also remove roadside spoil along the west side of U.S. 1, upon which exotic species of plants had grown, and returning the area to its original grade. The Harrison Tract is a known habitat and nesting area for American crocodiles. Its wetlands functions were altered or eliminated by prior development of the land by its original owners. Restoration includes regrading the area to restore its original wetlands functions, including habitat for young and adult crocodiles. FDOT's mitigation of the Harrison Tract also includes restoration of tidal flushing to increase contributions of nutrients and food sources to the surrounding tidal bay system. Crocodiles have been observed using the restored areas. FDOT has installed additional nesting berm habitat, basking habitat and shallow lagoon habitat to promote juvenile crocodile development. The District established that the credit awarded for this mitigation and the conversion ratios utilized for determining this credit were consistent with agency practice and its pertinent rules. FDOT was given a 1:1 credit ratio for areas involving full restoration of wetlands. In other portions of the Harrison Tract mitigation involving restoration of flushing to existing wetlands, FDOT was given not full credit, but credit based on the severity of limitation of the existing wetland functions. Based on this evaluation, mitigation credits were given in a range of a 3:1 ratio for restoration of severely disrupted or non-existent wetlands to a 20:1 ration for restoration of higher quality but not fully functional wetlands. FDOT is being awarded 70 mitigation credits for the 252 acres in the Harrison Tract that are being restored or enhanced. CONCURRENT MITIGATION Based on the mitigation ratios developed by the District, additional mitigation credits were required. Consequently, the project contemplates mitigation that will be undertaken concurrently with the construction of the project in addition to the upfront mitigation. FDOT proposes to earn these additional credits by projects involving creation and/or restoration of emergent vegetation, mangrove and seagrass habitats. FDOT’s proposal to mitigate mangrove impacts with "out of kind" mitigation of emergent vegetation habitats was viewed by the District as being necessary and appropriate because there were no sufficiently large areas of mangrove habitat suitable for restoration. Table 7 of Attachment H to FDOT Exhibit 26 sets forth the four mitigation projects that constitutes the concurrent portion of the mitigation for the project. This table sets forth the acres mitigated, the conversion factor for the mitigation, and the resulting mitigation credit awarded. In addition, the table references certain credit for the placement of the hydrological culverts. As will be discussed later, that credit was withdrawn at the formal hearing. The four mitigation activities that will constitute the concurrent portion of the mitigation plan are: the removal of the Lake Surprise causeway (2.90 acres credit); the scrape down of the Jewfish Bridge approaches (0.67 acres credit); the restoration of the FGFWFC road (10.34 acres credit); and the Boca Chica project (27.17 acres credit) The Lake Surprise Causeway removal mitigation involves 5.26 acres of on-site seagrass restoration and 0.54 acres of unvegetated bottom mitigation through the excavation of 52,220 cubic yards of material. Lake Surprise historically was a shallow tidal lake supporting seagrasses before a causeway was built across the lake over the seagrasses. FDOT proposes to remove the causeway and restore the previous elevation, after which it is anticipated that seagrasses that grow on the east side of the causeway will fully recruit naturally to the excavated area. Removing the Lake Surprise Causeway will establish 5.26 acres of seagrass, for which FDOT received 2.63 acres of on-site mitigation credit based on a 2:1 ratio. Through natural recruitment after removal of the causeway, there is a high likelihood that the entire 5.26 acres will recolonize with seagrass. FDOT minimized the seagrass impacts to the greatest extent possible. The mitigation credit pertaining to Lake Surprise does not include credit for the removal of the causeway itself. This awarded credit is for the restoration of seagrass areas. The mitigation pertaining to the Jewfish Creek Bridge approaches proposes the scrape down of 1.33 acres of existing fill to allow the area to become recolonized with mangroves. Boca Chica is located in southern Monroe County over one hundred miles from the southern terminus of the project. This site was chosen by FDOT as a site for seagrass mitigation project after FDOT reviewed several other potential sites. Two other sites were rejected. The area around the C- 111 canal was rejected because the land proposed for use was in private ownership. Several defunct marinas in Port Bougainville were rejected due to poor conditions not conducive to seagrass growth. Boca Chica was finally chosen as the site because it was a large enough area with light and hydrological flow conditions conducive to seagrass growth. The evidence establishes that the Boca Chica site is the most viable for seagrass mitigation. The seagrasses to be impacted at Lake Surprise are healthy and productive turtle grass, manatee grass and cuban shoalgrass. Turtle grass is considered an extremely valuable “climax community” of seagrasses which hold sediments in place, cleanse water quality, and forms the base of the food chain. It is valuable to sea turtles, manatees and recreationally important fish and shellfish. The cuban shoalgrass that will colonize at Boca Chica is a pioneer colonizer species that grows in disturbed areas. It is not as valuable to the marine system as turtle grass. The Boca Chica seagrass mitigation permit condition proposed to offset impacts to 11.27 acres of seagrass. This will involve the removal of 306 cubic yards of sediment and hydraulically dredging approximately 1,175 cubic yards of spoil material. The proposed permit conditions state that FDOT shall provide future maintenance of the culvert areas to maintain adequate flushing. FDOT will plant 25.92 acres of seagrasses to mitigate for the remaining 8.64 acres of impacts, for a mitigation ratio of 3:1. In addition, 8.46 acres of seagrass will be planted to mitigate for the barren bottom area that will be affected, and 1.62 additional acres will be planted to compensate for any unexpected impacts to Boca Chica based on the necessary improvements. Overall, there will be of 36 acres of seagrass mitigation by FDOT, for which FDOT is receiving 27.17 acres credit. FDOT will also increase the water flow between the east and west lagoons of Boca Chica, and maintain the culverts connecting the two sides, in order to further promote growth of seagrass therein. FDOT is responsible for 80% survival of each acre of seagrass mitigation, as well as monitoring once a year for five years. Based on historical data obtained from Boca Chica during past mitigation efforts, there is a high likelihood that the entire 36 acres of mitigation will survive, and that the remaining 74 acres of the Boca Chica lagoons will experience natural recruitment of seagrass as a result of FDOT's efforts. The FGFWFC access area was built by excavating a ditch, and putting fill on the wetlands and creating a dirt road bed. After the C-109 canal is backfilled, the access road will no longer be needed. The mitigation project will excavate the existing road bed, back fill it into the ditch, thereby recreating the wetlands that were there previously. FDOT will receive 10.34 mitigation credits based on a 1:1 ratio of acres restored. EVALUATION OF MITIGATION There is no mitigation in this permit for any wetland impact beyond the direct loss of the specific 149 acres that will be dredged or filled. Mitigation was provided only for the direct, footprint impacts of the project. None of the up front mitigation involves the creation of wetlands, which entails converting areas that were not previously wetlands or open water and turning them into wetlands. It will likely take between 20 and 50 years for the mitigation areas to achieve full functional value required by the South Florida Water Management District mitigation permit. In the interim, there will be a net loss of wetland functional value. With time, the proposed mitigation has a high likelihood of success. Based on FDOT's past successes in mitigation of construction-related impacts, FDOT is able to comply with permit conditions relating to best management practices associated with the construction of bridges and pilings and turbidity screens around road construction, as well as restoration of seagrasses and mangroves. Petitioners assert that the District erred in determining the credit to be given for the up-front portion of the mitigation. While it is true that the SFWMD Rules do not mention "up-front" mitigation, the District has the authority to consider all aspects of a mitigation project in weighing its relative value. Consulting engineering inspectors have been retained by FDOT to insure that all permitting requirements are met during mitigation and construction, and that the technical special provisions for protection of threatened and endangered species are complied with by FDOT. The proposed permits contain appropriate conditions that require FDOT to monitor and maintain the mitigation areas. FDOT will be responsible in perpetuity for maintaining the tidal flushing connection at the Boca Chica mitigation site. Special permit condition 6 to the SWM and WRM staff reports require wetland and upland monitoring. If wetland and upland monitoring or other information demonstrate that additional adverse impacts have occurred due to this project, FDOT would be required to offset the loss of any additional wetland impacts. MITIGATION IS APPROPRIATE The evidence established that the mitigation projects were fairly and appropriately reviewed by SFWMD and that the mitigation credits were fairly and appropriately awarded. The evidence also established that there is appropriate mitigation for the direct, secondary, and cumulative impacts of this project. ACTIVITIES NOT RECEIVING MITIGATION CREDIT Mitigation credits for the 25 hydrologic culverts north of C-111 were originally included in the permit staff reports. Those mitigation credits were removed in an addendum to the staff reports, introduced as District's Exhibits 5 and 6. These credits were not necessary to offset project impacts. After the staff report was issued, they became a point of contention by the Petitioners because they will not be utilized until a management plan is developed. Since they were not necessary to meet mitigation requirements, the credits were removed from this project. These credits were never included in the mitigation ratios for these permit applications. The addendum removed the 9.6 credits initially contemplated for the culverts. No credit has been awarded for the relocation of threatened and endangered species of plants, such as Joewood and Bay Cedar by FDOT from the C-111, C-109 and roadside spoil mitigation areas. These species have been relocated to tree islands constructed by FDOT on the mitigation sites, or to other areas that would not be impacted by the project. FDOT also was not given mitigation credits for: (1) the wildlife crossings and the fencing that will funnel wildlife through these crossings; (2) installation of pipe culverts north of the C-111 canal and bridges and box culverts south of C-111; and which, in addition to providing a corridor for aquatic species, will increase the tidal flushing of the area; (3) the removal of the Lake Surprise Causeway, which will restore historical hydrological flow between the eastern and western sides of Lake Surprise; (4) FDOT's commitment to improve and maintain the flushing of the west lagoon culverts in Boca Chica (mitigation is in the east lagoon); and (5) FDOT's contribution of $300,000 to assist Monroe County in performing a carrying capacity study for the County. Additionally, FDOT will preserve the Jewfish Creek Bridge abutment, which will be preserved for local historical purposes. FDOT will prepare the Jewfish Creek Bridge pilings for an artificial reef at Long Key during construction. THE PUBLIC INTEREST TEST It is appropriate for the SWFMD to consider, in balancing the public interest test, to consider traffic safety and hurricane evacuation.3 Because of FDOT's expertise in those areas, it is appropriate for the permitting agency to give great weight to highway safety concerns, including hurricane evacuation, presented by FDOT. The application of the public interest test does not involve consideration of non-environmental factors other than those expressly set forth in the statutes such as navigation or preservation of historical or archaeological resources. Specifically, aesthetics, quality of life, the potential for a project to cause increased crime, and school overcrowding are not properly considered within any of the seven factors contained in Section 403.918(2)(a), Florida Statutes (1991). The District concluded that the project is clearly in the public interest based upon consideration and balancing of the following factors: hurricane evacuation improvements, public safety improvements, a SWM system where no SWM system currently exists; wildlife crossings and fencing north of the C-111 canal where no such crossings or fencing currently exist; wildlife box culverts to accommodate crocodiles, alligators, manatees and marine life where no such culverts currently exist; and hydrologic culverts, which have the potential to assist in the restoration of hydrologic flows, and the mitigation projects, both upfront and concurrent. SECTION 403.918(2)(a), FLORIDA STATUTES Section 403.918(2)(a), Florida Statutes, requires the permitting agency to determine “[w]hether the project will adversely affect the public health, safety, or welfare or the property of others." The property of others is not at issue. As discussed below, the evidence clearly established that the project will greatly enhance the safety of the road during normal operations and facilitate evacuation in the event of a hurricane. There will be clear benefits to the public safety as a result of this project. As part of the PD&E process, FDOT, through Metric, prepared "A Safety Evaluation" of the existing roadway. The safety analysis was based on FDOT accident statistics for the years 1983-1988, as well as engineering review of the conditions causing the accidents. Specifically, FDOT based their safety analysis on the following: 1) calculation of the abnormally high accident rate on the roadway based on the rate quality control formula set forth in the FDOT Highway Safety Improvement Guidelines, and approved by the Federal Highway Administration; 2) copies of the actual crash reports filed with the Florida Division of Highway Safety and Motor Vehicles, which provided detail greater than that generally available through FDOT's own accident data reports, and which formed the basis of the collision diagram in the Safety Evaluation (FDOT Exhibits 36; and 3) and its August 1996 update thereto (FDOT Exhibit 41), on-site evaluation and review of the roadway to determine geometrics of the roadway, locations of driveway accesses and side roadways and the degrees at which roadways intersected. Metric prepared an update of the Safety Evaluation for the years 1989-1994, to determine the continuing validity of the Safety Evaluation, as well as to review alternative proposals to the original proposed roadway configuration. In preparing the update, the recent accident data (FDOT Exhibit 37) and the underlying research in the Safety Evaluation were used by Metric Engineering in reaching its conclusions. The Safety Evaluation performed by Metric in 1989 established high accident rates on the roadway based on a detailed segmental analysis of the roadway. In August of 1996, the Safety Evaluation was updated by Metric, which update confirmed the findings of the Safety Evaluation, and further stated that accident frequency on the Monroe County portion of the roadway exceeded the state average accident rate and the abnormally high accident rate for the years 1990 through 1994 (notwithstanding the rear-end accidents occurring at Jewfish Creek). Fatal accidents on the Dade County portion exceed the state average on the same stretch by 37 percent for the same years. The most severe accidents occur on the Dade County portion. The Monroe County portion of the roadway exceeds the statewide average in the abnormally high accident rate four out of the last five years that FDOT studied. The Dade County portion does not exceed the accident frequency or the number of accidents, but the fatality rate in Dade County is much higher than the state average. Presently an abnormally high accident rate exists in three locations along the project corridor, two of which are in the vicinity of the Jewfish Creek bridge. The third location is north of the bridge on Cross Key. Replacing the Jewfish Creek Bridge with the fixed-height bridge proposed by FDOT will substantially increase the safety on the project corridor. The District considered this to be an important positive element in the public interest balancing test. The existing 2:1 slopes of the roadway make it difficult for drivers to recover from running off the roadway, resulting in a greater frequency of this type of accident. Moreover, the existing clear zone is not large enough to overcome the 2:1 slope to allow safe recovery of errant vehicles. As a result, catastrophic crashes occur rather than safe recoveries. Also, as with hurricane evacuation discussed in the following section, actual accidents on the roadway prevent traffic from accessing or leaving the Keys, and also prevent emergency vehicles from rapidly accessing the Keys and a crash site. This occurs because there is little or no shoulder or clear zone along the sides of the road to allow emergency vehicles to efficiently access an accident site, and in the event of a severe, head-on type collision, the roadway is blocked off. U.S. 1 through the project corridor is regarded as so unsafe for travel that Monroe County law enforcement officials call it "death alley." There are many head-on collisions due to the two-lane, no-median alignment. Law enforcement is difficult and dangerous along the roadway, because it has very few areas wide enough to allow law enforcement officials to detain driving violators. It is also very dangerous, for the same reasons, for a driver to pull off the roadway with a broken-down vehicle. High rates of speed and impaired drivers contribute to the accident rates along the project corridor. The efforts of law enforcement to control speeders and drunk drivers is impeded since it is practically impossible for enforcement officers to turn their vehicles around to pursue violators without running a high risk of causing an accident on their own. The project would significantly improve safety on the roadway by reversing the problems identified in the this section, as well as the previous sections of this Recommended Order. The project would virtually eliminate head-on collisions which largely contribute to serious injuries and fatalities along the roadway. The project would also help eliminate problems with emergency vehicle access to accident sites and restoration of service in the event of accidents, and would increase the roadway's level of service as discussed below. Improved level of service was an additional need considered by FDOT during the PD&E process. While the District did not consider the traffic level of service by itself to be weighted as part of the positive public interest criteria in this project, the impacts of resulting congestion are relevant to the public interest consideration of traffic safety as discussed in the foregoing sections. Lower quality level of service, as presently exists on the roadway through level of service F, adversely affects the safety of the roadway. When traffic levels rise, driver frustration increases leading to drivers passing in no-passing zones and potentially resulting in head-on collisions and high-severity accidents. Additionally, due to the narrow shoulders of the existing roadway, accident vehicles pose a threat to and impede normal traffic flow on the roadway. The Highway Capacity Manual set the standards for traffic engineering and is used in all fifty states. The manual classifies the existing roadway as a two-lane arterial rural road. Applying the standards for measuring level of service for two-lane rural roads set forth in the Highway Capacity Manual, FDOT determined that the existing level of service on the roadway is E, which is a very poor level of service that does not meet the established standard of level of service C required by the Highway Capacity Manual. Monroe County uses a speed based method of calculating level of service. Using that method, the level of service for U.S. 1 is at an acceptable level. The parties disagree as to which method of calculating the level of service is appropriate. That conflict is resolved by finding that the method used by FDOT is the appropriate method because of its wide acceptance and long-term use. Traffic volume in the area of the southern terminus of the project is growing at a rate average annual rate of 3.07 percent. In the present condition of the roadway, level of service will degrade to F, or forced-flow conditions, by the year 2006. Even with the improvements proposed by FDOT, the level of service in the northbound direction would improve to level of service B, but the level of service in the southbound direction would remain at level of service D or E due to the single southbound land configuration. Hurricanes pose a serious threat to the safety and welfare of residents and visitors of the Keys. Monroe County is the most vulnerable hurricane-prone area in the United States because it is surrounded by tropical waters, land elevation is low throughout the islands, and the evacuation routes are limited to U.S. 1, an extended route that starts in Key West and runs to the mainland, and Card Sound Road. The greatest potential for loss of life during a hurricane in the Keys is from storm surge. Storm surge is a dome of water near the center of a hurricane which is created by the winds on the water's surface. In a category 3, 4 or 5 storm, the entire land mass in the path of the storm will be inundated. Because of the wind and storm surge associated with hurricanes, the best response to a hurricane warning in the Keys is to evacuate people to the mainland away from the water and the storm surge threat. Accordingly, Monroe County orders a mandatory evacuation in a category 3, 4, or 5 hurricane, and no shelters are opened. There is little or no disagreement as to the vulnerability of the Keys to hurricanes or as to the danger posed by a hurricane. There is disagreement as to whether the proposed project is needed for improved hurricane evacuation. The conflicting evidence in this regard is resolved by the following findings, which are based on the more credible, substantial evidence. The existing road does not have sufficient hurricane evacuation capacity to meet the present and projected future needs of Monroe County residents and visitors. In current hurricane evacuations, the two northbound lanes on U.S. 1 between mile marker 90 and 106 are split at Key Largo. Sixty percent of the traffic is directed up the northbound lane of U.S. 1; forty percent of the traffic is diverted onto the northbound lane of Card Sound Road. One southbound lane of U.S. 1 and Card Sound Road must remain open for emergency vehicles to reach an accident or a disabled vehicle, or to bring emergency supplies into the Keys. Improving the roadway is critical to the success of Monroe County's hurricane evacuation plan. FDOT relied on hurricane evacuation and needs modeling performed by Monroe County and the ACOE to confirm the need for improvements. All of the models used indicated that the project corridor is the controlling roadway segment for improving hurricane evacuation of the Keys. Additionally, FDOT relied on the Lewis Report of January 15, 1993, a study commissioned by the Governor of Florida. Recommendation No. 17 of the Lewis report recommends that FDOT expedite the design and construction of the project, which is viewed as being critical for increasing the rate of emergency evacuation. Dr. Robert Sheets, former director of the National Hurricane Center, testified that the failure to make improvements to the roadway would be "unconscionable." Dr. Sheets and Billy Wagner, the Director of Emergency Management for Monroe County, presented very compelling and very persuasive testimony that this project is essential for hurricane evacuation purposes. The proposed project is the minimum transportation improvement that will achieve a significant improvement in evacuation safety and clearance time. With the present two- lane configuration and narrow shoulders, evacuating traffic would be halted completely by a vehicle breakdown or an accident blocking one lane. Replacement of the Jewfish Creek Bridge will also facilitate the hurricane evacuation need for the project. In addition to improving the rate of evacuation, the project will make an evacuation safer. Emergency personnel cannot reach accidents on the roadway during an evacuation because, in certain segments, no roadbed exists adjacent to the northbound lane. A second northbound lane and wider road shoulders would enable disabled vehicles to be serviced and removed from the highway. The proposed changes to the road would improve emergency vehicles' access to an accident scene. The elevation of the roadway at Lake Surprise is so low that it can be flooded easily by a storm. The proposed project would replace the existing muck bed of the roadway with more stable material. The existing roadway is subject to settling and washout during storm events, which reduce the safety of the roadway itself and reduce the evacuation capacity of the roadway. If washout occurs, moving equipment to the islands for recovery efforts following a hurricane will be difficult or impossible. The proposed project will prevent erosion and reduce the effects of storm surge and wave action on the road during a hurricane. When the project has been completed, three lanes of evacuating traffic, two lanes from U. S. 1 and a third from Card Sound Road, will converge at Florida City. Representatives of FDOT, the Monroe County Sheriff's Department, the Florida Department of Law Enforcement and Monroe County Emergency Management have planned to manage the northbound traffic when it reaches Florida City during an evacuation. Several feasible alternatives exist, but additional planning is needed to prevent a monumental bottleneck at the northern terminus of the project. While it is clear that this project will not resolve all problems that exist as to hurricane evacuation, it is also clear that this project is essential to improve hurricane evacuation. SECTION 403.918(2)(a)2, FLORIDA STATUTES Section 403.918(2)(a)2, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect the conservation of fish and wildlife, including endangered species, or their habitats.” The District considered the effect of the direct loss of dredging and filling 149.07 acres of wetland. As set forth in previous sections, it is found that this loss will be offset by the mitigation. For use during construction of the project, FDOT will adhere to technical special provisions and special permit conditions 9 through 13 to protect manatees, crocodiles, alligators, indigo snakes, marine turtles, and valuable trees, palms and other wildlife, to minimize or preclude any impacts to those species. Additionally, any osprey nests around the Jewfish Creek Bridge area at the time of construction will be relocated by FDOT if necessary. As part of the development of the FEIS, as required by the Federal Highway Administration under the National Environmental Protection Act, FDOT obtained official letters of concurrence from the USFWS and NMFS that the project would cause no adverse impacts to endangered species under section 7 of the Endangered Species Act. That process also established the project's consistency with Florida Coastal Zone Management Program, as determined by the State Clearinghouse within the Office of the Governor, in coordination with DEP, the Department of National Resources and FGFWFC. The project also contains provisions to impact positively or enhance the conservation of fish and wildlife, including threatened or endangered species and their habitat, as described below. These were positive factors that further helped neutralize and offset the 149.07 acres of direct impacts. In addition, FDOT is required to evaluate the effectiveness of the fencing along the entire project corridor, discussed below, and report to the District on that effectiveness. If the District determines that the fencing could be more effective, it may require FDOT to implement those suggestions. South of the C-111 canal, construction of box culverts and bridges addresses impacts to the American crocodile, a listed endangered species. Problems were identified with placement of existing culverts, which did not provide enough clear space and which caused the crocodile to cross over the roadway rather than through the culvert. To address this problem, 15 larger box culverts and three bridges will be placed within the roadway. These provide the necessary clear space to allow the crocodile to safely pass under rather than over the road. The location of the box culverts was chosen by reviewing crocodile mortalities associated with road crossings. Placement of these box culverts and bridges will also improve the hydrological flow of water within the project area, provide a crossing area for manatees, and allow greater dispersal of the crocodile population throughout Florida Bay. Species expected to use these box culverts include aquatic and aquatic water dependent species in the area. They were primarily targeted for crocodiles, alligators, and manatees, but certain fishes, turtles, frogs and other species in the wetlands along the project corridor will utilize the culverts. The box culverts will have 100 feet of wingback fencing extending north and south of each culvert. The intent of the wingback fencing is to funnel wildlife into the box culverts. Intermittent or wingback fencing is appropriate south of the C-111 canal for two primary reasons. First, the animals which will be guided into the box culverts are aquatic dependent. The area south of the C-111 canal is primarily water, washed mangrove areas and tidal creeks. Crocodiles tend to move in tidal creeks. Second, it was not possible to ensure continuous fencing along all portions of the project south of the C-111 canal because there are existing businesses. It could not be assured that these businesses would keep a gate closed. The project originally proposed continuous fencing alongside the road where it abuts ENP. Continuous fencing was initially proposed because the initial application included a solid concrete barrier down the median of the road. If a crocodile did enter the road from the side with discontinuous fencing, after crossing one lane the crocodile would hit the barrier, but then easily find its way back to the area it came from. However, the project was later modified to include a tri-beam barrier because it lessens the footprint of the project and thereby lessens the wetland impact. Since the current application does not include a continuous barrier down the middle of the road, if a crocodile enters the road it would cross the tri-beam barrier, go across another lane of roadway before hitting a continuous fence. The animal would then run up and down that fence with nowhere to go except back across the road again. This would increase their exposure to a road kill. With the installation of bridges and culverts along the southern portions of the project corridor, there is no need for continuous fencing because aquatic wildlife, such as the American crocodile, will tend to follow the flow of water through the culverts rather than climb over the roadway. The FGFWFC and ENP oppose continuous fencing and prefer intermittent fencing south of C-111 canal since the project now includes a tri-beam barrier. Positive benefits also include construction of panther crossings at four locations north of the C-111 canal to account for impacts to the Florida panther, a listed endangered species, in the vicinity of the project, along with continuous fencing on both sides of the road north of the C- 111 canal. The crossings will be placed at locations that show historical use by wildlife, including areas at the Dade County Correctional Institute access roadway, the water control structure on the C-109 canal, and the berm of the C- 111 canal. The wildlife crossings are indicated by blue dots on FDOT's Exhibit 1. FDOT underwent years of extensive coordination with the environmental regulatory and resource agencies to design a project that would accommodate their ecosystem management plans. The location of the wildlife crossings was based upon radio telemetry data, collected from radio-collared panthers, and their typical corridor movement. The location was further chosen based on input from the USFWS and the FGFWFC. The continuous fencing north of the C-111 canal will prevent wildlife from crossing the road, and instead force them to use the wildlife crossings. The crossings were designed for panther use, the panthers being the shyest animal in the area. If panthers can be accommodated, then other threatened and endangered species and other wildlife are expected to use them. DOT studies of the effectiveness of wildlife crossings, with fencing, including crossings installed on Alligator Alley, establish that wildlife will use the crossings, both singly and in groups, and that the crossings substantially reduce, if not eliminate, automobile- related mortality of wildlife. Documented wildlife include panthers, wild turkeys, wading birds, alligators, deer, bobcats, black bears and raccoons. SECTION 403.918(2)(a)3, FLORIDA STATUES Section 403.918(2)(a)3, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling.” The replacement of the bascule bridge at Jewfish Creek with a 65-foot high fixed-height bridge will be a benefit to navigation. Because Jewfish Creek is part of the intracoastal waterway, the existing bridge has to be frequently raised or lowered to accommodate marine traffic. Because of the age of the existing structure, frequent breakdowns have been experienced. Marine traffic is stopped or delayed if the bridge cannot be raised or if there is a delay in raising the bridge. Vehicular traffic is stopped while the bridge is raised. Regarding the flow of water, the project incorporates wildlife box culverts and bridges, which will improve tidal flushing and the flow of water south of the C- 111 canal. The District considered this to be a positive consideration under the public interest test. The 25 hydrologic culverts north of the C-111 canal were also a positive factor in the test because the culverts provide future water management capability. Erosion and shoaling are neutral factors in the public interest test because the permit conditions contain a plan to control erosion and shoaling during construction and to provide for road stabilization after construction. In addition, there is a positive factor regarding shoaling in that the roadway area now has a lot of storm action, causing problems with erosion on the side of the road. The project provides for road stabilization, which is a neutral to positive factor in the public interest test. SECTION 403.918(2)(a)4, FLORIDA STATUTES Section 403.918(2)(a)4, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect the fishing or recreational values or marine productivity of the project.” A positive factor pertaining to marine productivity is the box culverts and bridges south of C-111, which will allow marine species to travel beneath the road to access the water on both sides of the road. Removal of the causeway along Lake Surprise opens that water body back up to one contiguous system, which is also a positive factor. The seagrass mitigation addressed in previous sections will also improve marine productivity and provide habitat for fish. SECTION 403.918(2)(a)5, FLORIDA STATUTES Section 403.918(2)(a)5, Florida Statutes, requires the permitting agency to consider “[w]hether the project will be of a temporary or permanent nature.” The project is permanent, though some construction impacts are temporary in nature. Once temporary impacts have ended and the project is complete, the project will be a positive benefit, because of the construction of the SWM system, culverts, animal underpasses and other benefits as set forth above. SECTION 403.918(2)(a)6, FLORIDA STATUTES Section 403.918(2)(a)6, Florida Statutes, requires the permitting agency to consider “[w]hether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061.” This factor is not at issue. SECTION 403.918(2)(a)7, FLORIDA STATUTES Section 403.918(2)(a)7, Florida Statutes, requires the permitting agency to consider “[t]he current condition and relative value of functions being performed by areas affected by the proposed activity.” A percentage of wetlands immediately adjacent to the road are impacted by exotic vegetation. Areas further out are part of a significant wetland ecosystem and are considered high quality. This project contains an exotic control program within FDOT's right of way, which is a positive consideration in the public interest test. Wetlands are currently receiving untreated storm water, which runs off the road immediately into the adjacent wetlands and water bodies without treatment. The project will include a SWM system where none currently exists as is detailed in the previous sections. This is a positive factor in the public interest test. The direct impacts of the project on 149 acres of wetlands alongside the roadway is not as large or significant as the impact caused by placement of the original embankment and resulting cut off of the eastern and western portions of the Everglades north of the C-111 canal. Overall, the concurrent and upfront mitigation efforts of FDOT are of regional significance and benefit to Everglades ecosystem by helping to repair the damage caused by the original embankment. THE PROJECT IS CLEARLY IN THE PUBLIC INTEREST The District appropriately weighed all considerations in determining that the project is clearly in the public interest. The greater weight of the competent, credible evidence established that the project is clearly in the public interest. RIGHT OF WAY PERMIT APPLICATION The land encompassed by the ROW permit has been properly adopted as a "work" of the District, requiring District authorization via a ROW Permit Modification to FDOT. The District's real property interest in the C-111 ROW applicable to the ROW permit modification consists of both fee simple and easement interests. The evidence is clear that DOT's application for the permit modification was thoroughly reviewed by the District, consistent with the District's established ROW permit review process. The District presented uncontroverted evidence and expert testimony to establish by a preponderance of the evidence that issuance of the permit modification to FDOT is consistent with all applicable District statutes, rules and other criteria, including the District's conditions for issuance of ROW Permits set forth in Rule 40E-6.301, F.A.C. FBII offered no evidence or testimony to the contrary. FUTURE MODIFICATIONS Modifying the project at a later date to pave a second southbound lane would require a District ERP permit. The addition of impervious surface triggers the District's SWM jurisdiction in this regard. However, FDOT established that that it had no current plans for further widening. The permit conditions require secondary and cumulative impacts associated with the increased capacity be addressed in accordance with the rules and criteria in effect at the time of any application for future widening. In addition, the permits require that FDOT must comply with any more stringent water quality criteria in effect at the time of any future widening. MODIFICATIONS AT THE FINAL HEARING At the Final Hearing, the District issued an Addendum to Staff Report for each of the SWM and WRM permits. The amendments made non-substantive changes to the District's staff reports regarding fencing along the roadway, performance of a study of fencing on the roadway by FDOT, water quality sampling along the roadway, assignment of mitigation credits, and other technical changes in wording for purposes of clarification. The changes set forth in the District's Exhibits 5 and 6 do not create impacts to the environment beyond those addressed elsewhere herein.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Governing Board of the South Florida Water Management District enter a Final Order that issues the three permits challenged in this proceeding (SWM Permit No. 940606-10, WRM Permit No. 9460606-2-D, and ROW Permit No. 2584) subject to the conditions contained in the staff reports on the SWM permit application and the WRM permit application and subject to the additional permit conditions reflected by District Exhibits 5 and 6 and by the Findings of Fact pertaining to the permit for the relocation of the FKAA pipe. DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Leon County, Florida. ___________________________________ CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 11th day of April, 1997.
Findings Of Fact The Parties and the Property. The Respondent, HORNE, owns or has options to purchase approximately 24.35 acres of real property at the southwest corner of U.S. Highway 41 and State Road 50 Bypass in Brooksville, Florida. The Petitioner, the ASSOCIATES, owns approximately 67.5 acres of real property to the south and downstream from the HORNE property. The ASSOCIATES' property is presently undeveloped. The HORNE property contains an existing Publix shopping plaza, a mobile home sales office and vacant lands. The Publix plaza was previously permitted by the DISTRICT before it was constructed. The Surface Water Permit Application On August 7, 1992, HORNE submitted its application for surface water permit No. 400317.02. The application sought approval to construct a surface water management system for a proposed new K-Mart store on HORNE's property. On November 3, 1992, the DISTRICT issued notice of final agency action approving issuance of permit No. 400317.02 to HORNE. The day before the original final hearing in this matter scheduled for March 1993, new information from a study called the Peck Sink Watershed Study came to light which rendered the project as then designed unpermittable. This information resulted in the surface water management system being redesigned. On April 1, 1993, the DISTRICT notified all of the parties that the redesigned surface water management met District rule criteria. This resulted in issuance of what became known as the April 1 submittal. On May 12, 1993, in response to concerns raised by the ASSOCIATES at depositions on May 10, 1993, HORNE produced the May 12 submittal and provided it to all parties on that same date. The changes in design reflected on the May 12 submittal related to lowering the pond bottoms one foot below the orifices and changing the contour lines on the outside of Pond 5A. On May 13, 1993, further minor changes were made to the permit materials. Specifically, the changes were: reflecting on the engineering worksheets the lowering of the pond bottoms accomplished on the May 12 submittal, correction of the contour line on the outside of Pond 5A and showing the amount of additional fill into the 100-year floodplain caused by the addition of the contour line to the outside of Pond 5A. In reviewing HORNE's application, the District applied the standards and criteria set forth in Chapter 40D-4, Florida Administrative Code, and the Basis of Review for Surface Water Management Permit Applications. Compliance with DISTRICT Permitting Criteria Water Quantity The main two areas considered by the DISTRICT in assessing water quantity in a closed basin are: attenuating the peak rate of discharge for the 25 runoff for the 100 The peak rate of runoff for this project for the 25 (2) cubic feet per second (cfs) less in the post-developed condition than in the pre-developed condition, as shown on the April 1 submittal. No changes were made between the April 1 and May 12 or 13 submittals relating to the peak rate of discharge. The difference in the volume of runoff between the pre-developed and post-developed condition during the 100-year storm is being retained on site, as shown on the April 1 submittal. Therefore, DISTRICT rule criteria for the peak rate and volume of runoff were met on the April 1 submittal. Lowering the bottoms of the detention ponds on the May 12 and 13 submittals resulted in additional post 100 system, as redesigned to retain this additional 100-year volume, exceeds the DISTRICT's 100 Floodplain Encroachment Under the DISTRICT's floodplain encroachment standards, any fill within the 100 out an equivalent volume of fill elsewhere on the property. HORNE's application satisfies the DISTRICT's floodplain standards. HORNE is filling 1.59 acre feet of the floodplain and creating 1.75 acre feet of compensation. The floodplain compensation will be above the seasonal high water table, as required by Section 3.2.1.4 of the DISTRICT's Basis of Review. The original, existing seasonal high water table will be lowered as a result of the excavation so that the entire floodplain compensation area will be above the seasonal high water table. Water Quality A wet detention system as proposed by HORNE is an acceptable means under the DISTRICT's rules of treating runoff for water quality purposes. The bottoms of the ponds, as shown on the May 12 submittal, are all at least one foot below the orifice elevations, as required by the Basis of Review. Thus, the project met all relevant DISTRICT water quality requirements as of the May 12 submittal. Operation and Maintenance DISTRICT rules require that reasonable assurances be provided that the surface water management system can be effectively operated and maintained. HORNE will be the operation and maintenance entity for this surface water management system. The DISTRICT's main concerns at the time of permit review are that the design of the surface water management system not be an exotic design, that the design insure that littoral zones can be established, that the system orifice can be cleaned, that the overall system will be stable and that there is a viable operation and maintenance entity. HORNE's project can be effectively operated and maintained. Remaining District Rule Criteria As stipulated to by the parties that the project will not cause adverse impacts to wetlands and will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it in Chapter 40D Additionally, the proof establishes that the project will not cause adverse impacts on surface and groundwater levels and flows will not adversely affect the public health and safety; is consistent with the requirements of other public agencies; will not otherwise be harmful to the water resources within the District; will not interfere with the legal rights of others as defined in Rule 17 Objections Raised by the ASSOCIATES at the Hearing Pond Slopes and Operation and Maintenance Contrary to the assertion that the pond slopes will not be stable and cannot be effectively operated and maintained, the pond side slopes at this project are going to be constructed out of a heavy clay type of soil. Sodded side slopes of 1:1, as proposed for three of the ponds, can be stabilized and effectively operated and maintained. Although there is no DISTRICT requirement that sodded side slopes be mowed, so on these slopes could, if necessary, be cut. In the event the side slopes were to erode, easy repair is possible. All of the ponds except one side of one pond have areas at least 20 feet wide and slopes no steeper than 4:1 where maintenance can be performed. With regard to the pond that does not have this characteristic, equipment can enter and perform necessary maintenance. Water Quality Treatment Concerns that at least a portion of the bottoms of the ponds need to be below the seasonal high water table and that circulation of the ponds needs to be maximized in order to meet water quality treatment criteria are misplaced since there is no requirement that the pond bottoms be below the seasonal high water table in wet detention systems such as the one at issue in this case. Further, the entire bottoms of the ponds are littoral zone and meet DISTRICT rule requirements that 35 per cent of the pond be littoral zone, concentrated at the outfall. Additionally, the ponds at issue maximize circulation through the location of points of inflow and outflow. Floodplain Mitigation Concerns that volume in the floodplain mitigation area is not available because of problems with the seasonal high water table are also misplaced. Specifically, the floodplain area encroachment requiring mitigation relates to Pond 5A. There is more than enough volume within the area which will be excavated to compensate for the area where the fill will be deposited. The seasonal high water table will be at or below the floodplain mitigation area after the required excavation takes place. Although the seasonal high water table will be lowered where the excavation or cut is made and later raised where the fill is placed, no adverse effects on the water table will result from such lowering and raising of the water table. Volume In Pond 5A Allegations that the May 12 and 13 submittals reflect that Pond 5A has less volume available than the modeling calculations contemplate are incorrect. The changes in the contour lines of Pond 5A on the May 12 and 13 submittals from what was shown on the April 1 submittal occurred on the outside of the pond. The volume on the inside of the pond was not reduced actually increased when the pond bottom was lowered for water quality purposes. In determining how much volume a pond is to have when it is constructed, the computer modeling figures take precedence over the scaled plan drawings. In this case, the computer modeling figures never changed after the April 1 submittal. HORNE submitted a computer model that calculated the volume of Pond 5A. The output data clearly reflects that the top of the bank was 82 feet. Publix's Status as an Existing Site Assertions that the Publix site should have been considered in its pre-developed state since there will be approximately one acre foot of volume of runoff, or possibly less, leaving the site without retention are without validity. The Publix plaza was permitted by the DISTRICT in 1985 and constructed in 1986. The amount of peak flow discharge and overall discharge is currently authorized by a valid MSSW permit. When the DISTRICT reviews a permit application, all existing permitted surface water management systems must be accepted in their present state. There is no authority in the DISTRICT's rules to consider an existing permitted site in its pre Even if the Publix site is considered in its pre project has only .02 of an acre foot more volume of runoff in its post-developed condition than in the pre Storage of 100-Year Volume Allegations that the amount of 100-year volume being retained on site in the ponds has been incorrectly calculated by the DISTRICT and HORNE are also invalid. The DISTRICT's rules require that the difference between the pre- and post-development volume for the 100-year storm be retained on site. In the ponds which are the subject of this proceeding, the 100-year volume is retained in the ponds below the orifice. This volume cannot leave the site through the orifice; it can only leave the site by percolation into the ground or evaporation into the air.
Recommendation Based on the foregoing, it is recommended that the Southwest Florida Water Management District enter a final order granting HORNE's Application for Surface Water Management Permit No. 400317.02. RECOMMENDED this 25th day of June, 1993, in Tallahassee, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1993. APPENDIX The following constitutes my rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties Proposed findings submitted by Petitioners (Petitioner's proposed findings begin at paragraph number 13.) 13.-19. Accepted. 20.-30. Rejected, unnecessary. 31.-44. Rejected, subordinate to hearing officer findings. 45.-47. Accepted. 48.-77. Rejected, subordinate to hearing officer findings. 78.-79. Rejected, recitation of documents. 80.-84. Rejected, weight of the evidence. 85.-88. Rejected, unnecessary. 89.-93. Rejected, weight of the evidence. 94.-95. Rejected, unnecessary. 96. Accepted. 97.-98. Rejected, subordinate, weight of the evidence. 99.-100. Rejected, unnecessary. 101.-126. Rejected, subordinate. 127. Accepted. 128.-129. Rejected, unnecessary. 130.-135. Rejected, argument. 136.-144. Rejected, weight of the evidence. Respondents Joint Proposed Findings. 1.-56. Accepted, though not verbatim. 58.-59. Rejected, unnecessary. COPIES FURNISHED: David Smolker, Esquire Honigman, Miller, Schwartz & Cohn 2700 Landmark Centre 401 East Jackson Street Tampa, Florida 33602 Rodney S. Fields, Jr., Esquire Blain & Cone, P.A. 202 Madison Street Tampa, Florida 33602 Richard Tschantz, Esquire Mark F. Lapp, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899
Findings Of Fact Petitioner has a lease on a 160-acre tract of land along the northern boundary of Palm Beach County which has been zoned and used for several years to mine rock used in local road building operations. This tract of land is surrounded on the east, south and west by some 1,000 acres of land owned by Intervenor, Vanguard Farms. The Vanguard Farms property is used to grow citrus and sugarcane. The geology of the area in the vicinity of this application is such that some three feet of Everglades top soil overlies the limestone. The land surface is about fifteen (15) feet NGVD and the water level table fluctuates from twelve (12) to fourteen (14) feet NGVD for the dry and wet seasons. The Vanguard Farms property, which surrounds Petitioner's property in Palm Beach County, is a wet area bordered on the west by Lake Okeechobee and on the east by high ground water elevation. The area has an excess of rainfall over evapotranspiration and excess water will always be generated. In order to render Vanguard Farms arable it is necessary to drain the property and pump excess water from the land. The existing rock pit is some 6.7 acres in area. In order to economically mine rock from this pit it is necessary to remove stable overburden and expose the limerock to provide a stable platform on which the mining equipment can be operated. Since the water table is generally above the top of this limerock, it is necessary to remove water from the pit to expose the rock to be quarried. During earlier operations water from the pit dewatering was pumped into a canal which flowed onto intervenor's property. In the application now under consideration, no water from the dewatering operation will be pumped off the 160 acres controlled by Petitioner. A 25-acre holding pond has been constructed on this site as well as a 9-acre overflow pond. The holding pond was constructed by piling the overburden, and possibly some limerock, in a rectangular shape some ten feet above the surface (25 feet NGVD). This material with which this 10-foot high levee is formed was excavated with a dragline and shaped with a tractor. Condition 28, of the conditions proposed by Respondent for the grant of this application, requires all dikes, levees and berms behind which water is to be retained to be inspected for structural adequacy. A report of such inspection and steps necessary to correct the deficiencies noted shall be submitted, and the report is to be signed and sealed by a Florida registered professional engineer. Perimeter ditches on the north, south and east sides of Petitioner's lands will intercept seepage from the retention pond and surface waters flowing onto this property. These perimeter ditches are connected to the rock pit to which such waters will flow. Water moving westward across the property will be intercepted by the rock pit. Without the rock pit excess water generated in this area will flow onto Vanguard's adjacent land. This condition will exist when the pit is not in operation. However, when the pit is in operation, the water will be retained on Petitioner's property by those limiting conditions requiring the maintenance of water level elevation in the perimeter ditch to be kept either equal to or below the water level elevation of Vanguard Farms. Under this condition, all water will be routed between the pit and retention pond. Conditions of the permit which Respondent proposes to issue include that the water level in the retention pond not exceed 18.5 feet NGVD, that the holding pond be interconnected with the overflow pond, that the water level in the perimeter ditches be maintained by use of a flashboard riser at 10.8 feet NGVD, that dewatering operations cease upon notification by District staff of any adjacent property owners experiencing water-related problems, and that a direct connection between holding pond and rock pit be established for emergency discharge of water from the holding pond back into the rock pit.
The Issue The issue in this case is whether Seacoast Utility Authority's challenge to the South Florida Water Management District's proposed issuance of a water use permit to PGA National Golf Club and Sports Center, Ltd. in a critical water supply area should be upheld. As discussed below, the parties have stipulated that, in deciding to issue the permit, the South Florida Water Management District has not evaluated or considered whether the use of reclaimed water was either economically, environmentally or technically infeasible.
Findings Of Fact Based upon the evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: Seacoast is a publicly owned water and sewer utility which operates a wastewater treatment facility in Palm Beach County, Florida. Seacoast's service area is bounded on the south by Riviera Beach and on the north by the Town of Jupiter. Seacoast operates four treatment plants: two water plants and two wastewater plants. Seacoast's regional wastewater facility currently generates approximately six (6) million gallons per day ("MGD") of reclaimed water and is permitted by the Florida Department of Environmental Protection ("DEP") as an eight (8) MGD wastewater treatment plant. As discussed in more detail in the Conclusions of Law below, the Florida Legislature and DEP have sought to encourage the reuse of reclaimed water. This policy is one of the many sometimes competing goals that are supposed to be taken into account in the water use permitting process. Until a few years ago, the treated effluent from one of Seacoast's wastewater plants was directly discharged to nearby surfacewater. During the last four years, Seacoast installed a pumping station and five miles worth of transmission lines to deliver all of its treated effluent to its regional wastewater facility. Seacoast claims that these efforts were prompted by its interpretation of changing regulations and a perceived regulatory preference for reuse of water.1 Although Seacoast claims that there has been a change in regulatory emphasis in favor of reuse of reclaimed water, Seacoast is not under a mandate from any court or agency to sell or utilize any specific amount of reclaimed water. It does appear that a deep injection well used by Seacoast for disposal of wastewater is not or was not operating as designed. Seacoast was apparently obligated to construct reclaimed water facilities at its wastewater treatment plant as part of its permit from DEP for the injection well. There was no requirement that the reclaimed water be sold or otherwise utilized. The intended primary disposal for Seacoast's reclaimed water is reuse.2 Seacoast's wastewater treatment plant provides irrigation quality reclaimed water. Seacoast tries to sell the reclaimed water for irrigation use in an effort to recoup the costs incurred in constructing the facilities necessary to reclaim the water. Backup disposal is achieved through injection down a 3300 feet deep injection well into the boulder zone. Once the reclaimed water is injected down the well, it is unavailable for reuse. The evidence suggests that there are other possible utilizations available for Seacoast's reclaimed water including sale to another utility and/or backup recharge to preserve wetlands during periods of high pumpage. For example, Seacoast is apparently in the process of applying for the necessary permits to utilize a portion of its reclaimed water to prevent harm to wetlands adjacent to its Hood Road Well Field by constructing an hydraulic barrier. At all times pertinent to this proceeding, only approximately 1.2 MGD of the reclaimed water generated by Seacoast was being reused. The remaining approximately 5 MGD was disposed of through the injection well. PGA owns and operates three (3) golf courses in Palm Beach County within Seacoast's service area. PGA's golf courses are located within an area that has been designated by the District as a Critical Water Supply Problem Area. Critical Water Supply Problems Areas are geographical regions where the available water supply due to the potential for saltwater intrusion, wetland impacts, or impacts to existing legal uses, is predicted not to meet water demands that are projected during the next 20 years. See, Chapter 40E-23, Florida Administrative Code. The use of reclaimed water is not mandated in such areas. However, the District's Rules seek to insure the optimal utilization of alternative sources of water in such areas to minimize the potential harm to water resources. It is not clear from the evidence presented in this case when PGA first obtained the Permit from the District for golf course irrigation. The Permit allows PGA to use the groundwater table as the source of water for its irrigation. Before its expiration, PGA timely sought renewal of the Permit. On April 12, 1994, the District staff recommended renewal of PGA's Permit. The staff recommendation would allow PGA to continue using the groundwater table as the source of its water. The recommendation did not contain a requirement for PGA to use any reclaimed water as part of its golf course irrigation system. Seacoast became aware of PGA's application to renew its Permit through a routine review of all water use permit applications made to the District by "potential reclaimed water users in [its] service area." Seacoast filed a Petition for Formal Administrative Hearing challenging the District staff's recommendation to renew PGA's Permit. In its Petition, Seacoast alleged that its substantial interests would be affected by the renewal of the Permit because Seacoast's ability to achieve the State of Florida's goals of conservation and environmental protection depends upon PGA, and other similar country clubs, being required to consume reclaimed water. Seacoast contends that the staff recommendation immediately eliminates a major potential consumer of Seacoast's reclaimed water which purportedly impairs Seacoast's ability to meet state objectives for reuse of reclaimed water and results in the undesirable continued disposal of reclaimed water via deep well injection. In connection with its challenge to the proposed renewal of PGA's Permit, Seacoast has stipulated that PGA's proposed withdrawals from the groundwater table would not cause harm to the water resources of the District. Seacoast also admits that it has never evaluated whether it would be environmentally injured by PGA's withdrawals from the groundwater table and/or whether the proposed use by PGA is wasteful. The District does not currently have any goals for the utilization of reclaimed water on a regional basis. Instead, the District oversight of the utilization of reclaimed water is done on a permit by permit basis. As a general policy, the District will not accept a water use permit application in an area of critical water shortage unless a reuse feasibility determination is included. The District's rules do not currently contain any guidelines as to how the determination of feasibility is to be made, nor are there any criteria for reviewing an applicant's determination of feasibility. As discussed below, the District does not even consider the applicant's reuse feasibility determination unless the proposed withdrawal is projected to result in harm to the resources of the District. Even when harm to a resource is projected, the District accepts an applicant's feasibility determination regarding the use of reclaimed water without question or analysis. For the other consumptive use criteria set forth in Rule 40E-2.301, the District independently evaluates the applicant's conclusions to confirm that they are reasonable. In other words, the District treats reclaimed water as an alternative source of water in the event that an applicant's proposed water use is projected to cause harm to the water resources of the District. If no harm is expected to occur to water resources as a result of a proposed use, the District does not review the applicant's determination of whether or not to use reclaimed water. If harm is projected, the applicant is required to look at alternatives like water conservation or utilization of water sources other than those proposed (such as reclaimed water). The applicant is free to select any alternative that mitigates the harm. Thus, even in a Critical Water Supply Area, an applicant can mitigate concerns about harm to the resource without utilizing reclaimed water. In sum, under the District's current procedures, the use of reclaimed water is never required. It is simply one alternative an applicant can utilize to offset or mitigate projected harm to water resources (such as saltwater intrusion, contamination, wetland drawdowns or existing legal use impacts) from a proposed withdrawal. Even when the District staff concludes that an applicant's proposed use will result in harm to water resources, the staff does not critically review the applicant's determination of whether the use of reclaimed water is economically, environmentally, or technically infeasible. With respect to PGA's Permit, the District staff concluded that no harm to the resource was predicted as a result of PGA's proposed use. Thus, PGA's determination not to use reclaimed water was not evaluated or even considered. The District explains that its implementation of the permitting program is based upon its interpretation that its primary responsibility is to prevent harm to water resources. The District points out that there are a number of factors to be considered in utilizing reclaimed water. These factors include, but are not limited to, the cost of the reclaimed water, the cost of retrofitting an irrigation system, the long-term availability of the reclaimed supply and the availability of a back-up supply.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a Final Order dismissing the Petition filed by Seacoast challenging the renewal of Permit Number 50-00617-W to PGA for golf course irrigation. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of February 1995. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February 1995.
The Issue The issue to be determined in this case is whether Respondents, United States Sugar Corporation (“USSC”), Sugar Farms Co-op (“SFC”), and Sugar Cane Growers Cooperative of Florida (“SCGC”) (collectively “the Applicants”) are entitled to the Everglades Works of the District permits (“WOD Permits”), issued to them by the South Florida Water Management District (“District”).
Findings Of Fact The Parties Audubon is a not-for-profit organization dedicated to restoring and conserving natural ecosystems, focusing on birds and their habitats. Audubon has a substantial interest in the protection of the Everglades and other ecosystems in the area. Audubon’s interest is affected by the proposed agency action because the WOD Permits authorize agricultural discharges that affect these ecosystems. The District is a Florida public corporation with the authority and duty to administer regulatory programs in chapter 373, and Florida Administrative Code Title 40E, including a program for regulating discharges from the Everglades Agricultural Area (“EAA”) into works of the District. The EAA is located south of Lake Okeechobee and comprises about 570,000 acres. The majority of EAA agriculture is sugarcane, with some row crops, such as radishes, leafy vegetables, and corn, and turf sod. During fallow periods, rice is also grown. The Applicants are owners and lessees of agricultural lands in the EAA. Background Some essential background for this case is set forth in rule 40E-63.011: The Everglades is a unique national resource. It has a high diversity of species, and provides habitat for large populations of wading birds and several threatened and endangered species, including wood storks, snail kites, bald eagles, Florida panthers, and American crocodiles. Large portions of the northern and eastern Everglades have been drained and converted to agricultural or urban land uses. Only 50% of the original Everglades ecosystem remains today. The remainder is the largest and most important freshwater sub-tropical peatland in North America. The remaining components of the historic Everglades are located in the Water Conservation Areas (WCAs) and Everglades National Park (ENP). ENP and Loxahatchee National Wildlife Refuge (WCA 1) are Outstanding Florida Waters, a designation which requires special protection for the resource. Large portions of the Everglades ecosystem have evolved in response to low ambient concentrations of nutrients and seasonal fluctuations of water levels. Prior to creation of the Everglades Agricultural Area (EAA), nitrogen and phosphorus were mainly supplied to large areas only in rainfall. Phosphorus is the primary limiting nutrient throughout the remaining Everglades. Sawgrass has lower phosphorus requirements than other species of Everglades vegetation. A substantial portion of EAA nutrients is transported to the remaining Everglades either in dissolved or in particulate form in surface waters. The introduction of phosphorus from EAA drainage water has resulted in ecological changes in substantial areas of Everglades marsh. These changes are cultural eutrophication, which is an increase in the supply of nutrients available in the marsh. The increased supply of phosphorus in Everglades marshes has resulted in documented impacts in several trophic levels, including microbial, periphyton, and macrophyte. The areal extent of these impacts is increasing. In 1988, the United States sued the District and the Florida Department of Environmental Regulation, now the Department of Environmental Protection (“DEP”), in federal court, alleging that the agencies failed to enforce Florida’s water quality standard for nutrients in waters of Loxahatchee Wildlife Refuge and Everglades National Park. The principal pollutant of concern was phosphorus. Audubon, USSC, and certain members of SCGC and SFC intervened in the federal case. In February 1992, the parties resolved their dispute through a settlement agreement approved by the federal court (“the Consent Decree”). The Consent Decree required the District and DEP to take action to meet water quality standards by December 31, 2002. At that time, the nutrient water quality standard was a narrative standard, prohibiting the discharge of nutrients so as to cause “an imbalance in natural populations of aquatic flora and fauna.” The Consent Decree directed the District to construct 34,700 acres of stormwater treatment areas (“STAs”) so that nutrient-laden surface water discharged from the EAA could be treated before discharge to the Everglades Protection Area (“EvPA”), which includes Loxahatchee Wildlife Refuge, Everglades National Park, and the Water Conservation Areas. STAs are large freshwater wetlands which remove phosphorus from the water column through physical, chemical, and biological processes such as sedimentation, precipitation, plant growth, and microbial activity. The first STAs were constructed and in operation in 1993. The Applicants operate in the S-5A Basin within the EAA. Their surface water is conveyed to STA-1W for treatment before being discharged to the EvPA. The Consent Decree required the District to initiate a regulatory program by 1992 to require permits for discharges from internal drainage systems (farms) in the EAA. The regulatory program was to be based on agricultural best management practices (“BMPs”). The goal of the program, as stated in the Consent Decree, was to reduce phosphorus loads from the EAA by 25 percent over the base period (1979-1988). In 1992, the District promulgated rule chapter 40E-63, which required EAA farmers to obtain WOD permits and to implement agricultural BMP plans. The BMP plans address fertilizer use and water management. Permittees must also implement a water quality monitoring plan. The rules require reduction of the total phosphorus loads discharged from the EAA Basin, as a whole, by 25 percent from historic levels. See Fla. Admin. Code R. 40E-63.101. If the EAA, as a whole, is in compliance, individual permittees are not required to make changes to their operations. See Fla. Admin. Code R. 40E-63.145(3)(d). If the 25 percent reduction requirement is not met, the rule contemplates that individual permittees in the EAA would have to reduce nutrient loads in their discharges. See Fla. Admin. Code R. 40E-63.145(3)(e).1/ The Consent Decree also required the District to obtain permits from the Department for discharges from the STAs to the EvPA and to conduct research and adopt rules to “numerically interpret” the narrative standard. In 1994, the Florida Legislature enacted the Everglades Forever Act (“the Act”), chapter 94-115, Laws of Florida, which is codified in section 373.4592. The Legislature authorized the district to proceed expeditiously with implementation of the Everglades Program. See § 373.4592(1)(b), Fla. Stat. The “Everglades Program” means the program of projects, regulations, and research described in the Act, including the Everglades Construction Project. The Everglades Construction Project involved the construction of 40,452 acres of STAs, which is 5,350 acres more than was required by the federal Consent Decree. The Act acknowledged the BMP regulatory program for the EAA that the District had established in rule chapter 40E-63, and stated: Prior to the expiration of existing permits, and during each 5-year term of subsequent permits as provided for in this section, those rules shall be amended to implement a comprehensive program of research, testing, and implementation of BMPs that will address all water quality standards within the EAA and Everglades protection Area. See § 373.4592(4)(f)2., Fla. Stat. The Act required DEP to issue permits to the District to construct, operate, and maintain the STAs. See § 373.4592(9)(e), Fla. Stat. The Act required development of a numeric water quality phosphorus standard for the EvPA by 2003. See § 373.4592(4)(e), Fla. Stat. The Act set the goal of achieving the phosphorus standard in all parts of the EvPA by December 31, 2006. In June 1995, modifications were made to the Consent Decree. The deadline for achieving water quality standards in the EvPA was changed from December 31, 2002, to December 31, 2006. The STAs were increased from 34,700 acres to 40,452 acres. The chronological developments outlined above indicate the intent of the Legislature and the parties to the Consent Decree to conform state law and the Consent Decree to each other. In 2001, DEP initiated rulemaking that lead to its adoption of the Phosphorus Rule, rule 62-302.540, in 2003. The rule set a numeric phosphorus criterion for the EvPA of 10 parts per billion (“ppb”), applied through a four-part test in which attainment is determined separately for “unimpacted” and “impacted areas” of the EvPA. See Fla. Admin Code R. 62- 302.540(4). In conjunction with this rulemaking, the DEP and District developed the Everglades Protection Area Tributary Basins Long Term Plan for Achieving Water Quality Goals (“Long- Term Plan”) in March 2003. The Long-Term Plan provided remedial measures and strategies divided into pre-2006 projects and post- 2006 projects. The pre-2006 projects included structural and operational modifications to the existing STAs, implementation of agricultural and urban BMPs in areas outside the EAA or C-139 basins, and construction of several restoration projects congressionally mandated by the Comprehensive Everglades Restoration Plan. Modeling of treatment capabilities of the STAs after implementation of the pre-2006 projects predicted that the 10 ppb standard for phosphorus could be achieved, but not consistently. Therefore, the Long-Term Plan required the District to identify and evaluate methods to improve phosphorus reductions, and if the phosphorus criterion was not achieved by December 31, 2006, to implement post-2006 modifications and improvements. The post- 2006 strategies include projects to expand and improve the STAs. They do not include changes to the BMP program. In 2003, the Legislature substantially amended the Act. It incorporated the Long-Term Plan into the Act, finding that it “provides the best available phosphorus reduction technology based on a combination of the BMPs and STAs.” § 373.4592(3)(b), Fla. Stat. The Long-Term Plan contemplates maintenance of the BMP program in the EAA, with refinements derived from BMP research. Recent Conditions and Events As previously stated, chapter 40E-63 requires the total phosphorus load from the EAA to be reduced by not less than 25 percent from historic levels. Since full implementation of the BMP regulatory program, annual phosphorus loads have been reduced by approximately 50 percent. Despite the efforts and projects undertaken, the phosphorus standard was not being achieved as of December 31, 2006, in all parts of the EvPA. In 2007, the DEP issued a permit to the District for discharges from the STAs to the EvPA (referred to as the “Everglades Forever Act” or “EFA permit”). The permit required the District to design and construct several regional water management projects, including structural enhancements to STA-1W, and the construction of 6,800 acres of additional STAs. The permit and its compliance schedules provided interim relief through 2016 from the water quality based effluent limitation (WQBEL) necessary to achieve the 10 ppb phosphorus standard. The 2007 EFA permit was not challenged by Audubon or any other entity. The District, DEP, and the United States Environmental Protection Agency began working together in 2010 to develop new strategies for achieving compliance with the phosphorus standard in the EvPA. The agencies determined that compliance could be achieved by expanding the STAs by 7,300 acres (6,500 acres would be added to STA-1W) and constructing flow equalization basins to store up to 110,000 acre feet of stormwater runoff. These basins are designed to attenuate peak flows into the STAs in order to improve the processes that remove phosphorus. In September 2012, DEP issued the District a new EFA permit, which authorized continued operation of the District’s S-5A pump station, STA-1W, and the related conveyance systems by which stormwater runoff from the S-5A Basin is ultimately discharged to the EvPA. The permit was issued with a Consent Order, requiring the District to expand STA-1W by 6,500 acres of effective treatment area in accordance with a timeline and the District’s Restoration Strategies. The 2012 EFA Permit and Consent Order were not challenged by Audubon or any other entity. In 2013, the Legislature amended the Act again. The Act’s reference to the Long-Term Plan was revised to include the District’s Restoration Strategies Regional Water Quality Plan, which called for expanding the STAs and constructing flow equalization basins. See § 373.4592(2)(j), Fla. Stat. The Legislature added a finding that “implementation of BMPs, funded by the owners and users of land in the EAA, effectively reduces nutrients in waters flowing into the Everglades Protection Area.” See § 373.4592(1)(g), Fla. Stat. The 2013 amendments indicated the Legislature’s intent to codify into law the strategies developed by the District and other regulatory agencies to achieve water quality standards in the EvPA. Those strategies do not materially change the BMP program in the EAA. The Act and the rules of the District create programs for achieving restoration of the EvPA that rely heavily on the STAs. Over the years, the STAs have repeatedly been enlarged and enhanced. In contrast, the requirement for farmers in the EAA to reduce their phosphorus loading by 25 percent has not changed in 21 years. It is beyond the scope of this proceeding to question the wisdom of the programs that have been established by statute and rule. Whether Additional Water Quality Measures Are Required A principal dispute in this case is whether the WOD Permits must include additional water quality measures to be implemented by the Applicants. Section 373.4592(4)(f)4. provides that, as of December 31, 2006, all EAA permits shall include “additional water quality measures, taking into account the water quality treatment actually provided by the STAs and the effectiveness of the BMPs.” Audubon asserts that the requirement for additional water quality measures has been triggered. The District does not interpret the statute as requiring additional water quality measures under current circumstances. The interpretation of the statute is primarily a disputed issue of law and is addressed in the Conclusions of Law. There, it is concluded that additional water quality measures are not required. Whether the BMP Plans are Adequate Audubon contends that the WOD Permits should be denied because the Applicant’s existing BMP plans are not “tailored” to particular soils, crops, and other conditions. This contention is based on section 373.4592(4)(f)2.c., which states in relevant part: BMPs as required for varying crops and soil types shall be included in permit conditions in the 5-year permits issued pursuant to this section. Audubon showed that the Applicants have similar BMP plans for the thousands of acres covered in the three WOD Permits, and contends that this similarity proves that BMPs are not being tailored to specific farm conditions. However, soils and crops are similar throughout the EAA. The soils of the EAA are almost entirely muck soils and the primary crop is sugarcane with some corn or other vegetable rotated in. The Applicants use many of the same BMPs because they have similar soils and grow similar crops. There are three main categories of BMPs implemented in the EAA: nutrient and sediment control BMPs, particulate matter and sediment control BMPs, and water management BMPs. See Fla. Admin. Code R. 40E-63.136, Appendix A2. The BMPs proposed by the Applicants are based on research in the EAA and recommendations specifically for EAA soils and the crops grown there. The Applications do not identify the specific BMPs that will be implemented, but only the number of BMPs that will be selected from each of the BMP categories (i.e., sediment control). The Applicants must use BMPs on the District’s list of approved BMPs unless an alternative BMP is requested and approved. The lack of greater detail was explained as necessitated by the need for flexibility during the life of the permit to adapt BMPs to varied crops and conditions. Audubon does not believe the BMP plans are tailored enough, but there is no rule criterion for determining how tailored BMP plans must be, except they must achieve the overall goal of reducing phosphorus loading in discharges from the EAA by at least 25 percent. This goal is being achieved.2/ Audubon did not show that any particular BMP being used by an Applicant was the wrong BMP for a particular soil and crop, or identify the BMP that Audubon believes should be used. Audubon failed to prove that the Applicants’ BMP plans do not meet applicable requirements. Whether the Applications Are Complete Audubon contends that the WOD Permits must be denied because the Applications are incomplete. Many of Audubon’s completeness issues deal with minor discrepancies of a type that are more appropriately resolved between the District and applicants, not violations of criteria that are likely to affect a third party’s interest in environmental protection. Rule 40E-63.130 lists the requirements for a permit application for activities in the EAA Basin. An Application Guidebook is incorporated into chapter 40E-63, which contains instructions for completing the application. For applications to renew a permit, the practice of the District is to not require the resubmittal of information that was previously submitted to the District and which has not changed. The Application Guidebook explains this practice. The Applicants supplemented their applications at the final hearing to provide information that Audubon claimed was omitted from the Applications.3/ Audubon contends that the Applications are incomplete because some application forms are not dated and other forms are not signed by appropriate entities. The District explained its rule interpretation and practices associated with the forms. Additional signatures and dates were submitted at the final hearing. Audubon failed to demonstrate that the Applications are incomplete based on the identity of the persons who signed application forms or the lack of dates. Audubon contends the Applications are incomplete because copies of contracts or agreements are not included as required by rule 40E-63.132(3). Audubon failed to prove that contracts and agreements exist that were not included. Audubon contends the Applications are incomplete because they do not contain a completed Form 0779, entitled “Application For A Works Of The District Permit,” as required by rule 40E-63.132(5). In some cases, the information for Form 0779 had been previously submitted and was unchanged, so the District did not require it to be resubmitted for the permit renewal. Additional information was provided at the final hearing. Audubon failed to prove that the Applications are incomplete based on missing information on Form 0779. Audubon contends that the Applications are incomplete because documentation regarding leased parcels was missing. Pursuant to rule 40E-63.130(1)(a), individual permit applications must be submitted by the owner of the land on which a structure is located and any entity responsible for operating the structure, and the permit application must include the owners of all parcels which discharge water tributary to the structure. Applications may be submitted by a lessee if the lessee has the legal and financial capability of implementing the BMP Plan and other permit conditions. The District explained that when applications are submitted by a lessee who will be the permittee or co-permittee, the District requires the lessee to be a responsible party for the entire term of the permit, which is five years. If the lessee is a not a co-permittee, the District does not require information about the lease and does not require the lessee’s signature. If the lessee is a co-permittee, but the lease expires during the term of the permit, the District requires the applicant to modify the permit when the lease expires. Audubon failed to prove that the Applications are incomplete based on lease information Audubon contends that the Applications are incomplete because they fail to show that the Applicants participated in an education and training program as required by rule 40E- 63.136(1)(g). The preponderance of the evidence shows that the Applicants participated in education and training programs. Audubon failed to prove that the Applications are incomplete for any of the reasons raised in its petition for hearing or advanced at the final hearing. Water Quality Standards in the EAA Audubon presented some evidence of algal accumulations in ditches and canals, but the evidence was insufficient to prove the Applicants are violating water quality standards applicable in the EAA. Summary Audubon failed to carry its burden to prove that the Applicants are not entitled to the WOD Permits.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that South Florida Water Management District issue Permit Nos. 50-00031-E, 50-00018-E, and 50-00047-E. DONE AND ENTERED this 10th day of February, 2014, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2014.
