The Issue Whether Petitioner's application for renewal of water use permit application #200781.02 should be granted to withdraw a combined average withdrawal of 9,320,000 gallons of water per day and a maximum combined withdrawal rate of 18,600,000 gallons per day, subject to the terms and conditions listed in proposed permit for use at applicant's Haynesworth Mane.
Findings Of Fact IMCF operates a phosphate mining facility known as the Haynesworth Mine located on SR 37 in western Polk County, south of Bradley Junction. IMCF leases this mine from Brewster Phosphates, which is a joint venture of American Cyanamid Corporation and Kerr-McGee Corporation. The mine includes approximately 14,100 acres. IMCF took control of the mine from Brewster in 1986. At the time IMCF took control of this mine, a consumptive water use permit was extant which was due to expire in 1989. It is to renew this permit that the application here being considered was filed. After requesting and obtaining additional information and evaluating the application, Respondent issued its notice of intent to issue the permit. Phosphate ore is extracted by a dragline which opens mining cuts of 30 to 40 feet in depth at this facility. Seepage occurs into the mine cuts which must be removed in order to see and extract the phosphate ore. Dewatering is also necessary to protect the dragline from slope stability problems. Water pumped out of the mining cuts is introduced into the mine water recirculating system where it is used for numerous purposes, such as hydraulically pumping the extracted material to the beneficiation plant where clay and sand is extracted from the phosphate ore. The beneficiation plant uses large quantities of water, utilizing supplies from within the mine system (surface waters) and some from deep wells. It is the water from the deep wells that is the primary concern of the Intervenor. The surface water comes primarily from rainfall, mine cut seepage and make up water from the deep wells. Recycled water is of lower quality than well water due to the presence of organic materials or suspended solids, but it is used for many purposes, such as washing ore before being sent to settling ponds and later decanted from the top of the settling areas and returned to the water recirculating system. By use of recircled water in the beneficiation plant, the quantity of well water needed in later stages of the mining process and for make up due to evaporation and transpiration losses is reduced. Evidence presented shows that IMCF, by improving the recirculation system, has reduced the amount of well water needed in the overall mining process from 1220 gallons of deep well water per ton of phosphate rock produced in 1987 to 775 gallons per ton in 1989. The use here proposed is greater than was approved in the expiring permit; however, this increase is due almost entirely to the inclusion of the water pumped in the dewatering operation and the sealing water wells which were not counted in earlier years in determining the quantity permitted to be pumped. Withdrawal of water from the mine cuts affects only the surficial aquifer and can result in a withdrawal of water from adjoining property. To mitigate this problem, a setback of 1100 feet from adjacent property has been established in which mining cannot be conducted. Additionally, a ditch is to be installed between the mining cut and the property line which is kept full of water to provide recharge to the surficial aquifer. Phosphate mining is a reasonable and beneficial use of water, and is consistent with the public interest. The use here proposed was grandfathered in long before the Intervenor received a consumptive use permit in 1986 and will not interfere with any legal use of water existing at the time of the application. Considerable testimony was presented describing the computer modelling process used by IMCF and SFWMD in determining that the maximum drawdown of the water allowed by this proposed permit would not have a deleterious effect on adjacent property owners or on the Florida aquifer from which much of this water will be drawn. As a result, it is found that the rate of flow in nearby streams or watercourse will not be lowered; the level of the potentiometric surface will not be lowered below the regulatory level established by SFWMD; the drawdown will not induce salt water encroachment; will not cause the water table to be lowered so that lake stages or vegetation will be significantly affected on property not owned by the applicant; will not cause the potentiometric surface to be lowered below sea level; and the granting of this permit is in the public interest. The Intervenor's property consists of a 62 acre orange grove planted on reclaimed phosphate land that was mined more than 30 years ago and is surrounded by the 14,100 acres now controlled by IMCF. Her primary concern is that IMCF's mining operations will withdraw surficial water that would otherwise go to her orange grove, and that sufficient water will be withdrawn from the Florida aquifer that she will not have sufficient water to irrigate her grove. To support this position, Intervenor presented evidence that prior to 1986 her grove prospered with only natural rainfall. However, in 1986 it was found necessary to install a well to provide irrigation to this grove; and a permit was obtained from SFWMD. Subsequently, during a dry spell in April 1988 the surface pressure at Intervenor's pump dropped from 22 psi to less than 15 psi, and she was told the pumps would be burned out if pumping continued and the pressure dropped further. She attributed this low pressure at her pump to IMCF taking water from the aquifer from which her water also was drawn. During the period around April 1988, the ground water level dropped 15 to 20 feet below the average level of the water from which Intervenor drew her irrigation water. This resulted in the submersible pump having to lift water 15 to 20 feet (or more) higher than it had to lift when the pressure of the pump was 22 psi. In other words, Intervenor's pump was completely submerged in the water in the upper Florida aquifer, but the pump was not powerful enough to provide 22 psi pressure at the earth's surface. Changes in the ground water levels vary during each year depending on the amount of rainfall and the demands of those removing water from the aquifer. Spring time usage is normally heavy for agricultural purposes, and, as shown on Exhibit 25, each spring the ground water levels are closer to sea level than at any other time of the year. Intervenor also contended that IMCF should retain all of the water used in the mining process on its land rather than allowing the excess during heavy rainfall periods to be discharged into the Alafia River. No evidence was presented by Intervenor to show this to be a feasible solution; nor was evidence presented that this discharge polluted the Alafia River as contended by Intervenor. The Haynesworth Mine is a stationary installation which is reasonably expected to be a source of water pollution. Accordingly, it is required to obtain a permit from the Department of Environmental Regulation to discharge water into the Alafia River and is subject to various restrictions in so doing. No evidence was presented that IMCF or Haynesworth Mines violated any of the provisions of Chapter 403, Florida Statutes, in this regard.
Recommendation It is recommended that consumptive use permit #200781.02 be issued to IMC Fertilizer Inc., subject to the conditions contained in the draft permit. ENTERED this 7th day of January, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1991. COPIES FURNISHED: Robert W. Sims, Esquire Post Office Box 1526 Orlando, FL 32802 Catherine D'Andrea, Esquire 2379 Broad Street Brooksville, FL 34699-6899 Faye Dobbs Post Office Box 3407 Lakeland, FL 33802
The Issue Petitioners and Intervenors challenge the Department of Environmental Protection's (Department) Notice of Intent to Issue Environmental Resource Permit (ERP) No. 0142476-003 to IMC Phosphates Company (IMC) for proposed mining of phosphate at the Manson Jenkins Property (Property) located in Manatee County, Florida. The ultimate issue is whether IMC has provided reasonable assurance that the applicable requirements of Chapters 373 and 403, Florida Statutes, and relevant rules promulgated thereunder, have been satisfied justifying entitlement to an ERP.
Findings Of Fact The Parties Respondent, IMC, is a general partnership authorized to do business in the State of Florida and is the applicant in these proceedings. IMC has applied for an ERP to mine, reclaim, and conduct associated activities on the Property in Manatee County, Florida. These activities shall be referred to as the "Manson Jenkins Project." The Department administers the ERP program for various activities including phosphate mining and reviewed the ERP application for the Manson Jenkins Project. Petitioner, DCAP, is a not-for-profit corporation. Alan Behrens and Joe Fernandez reside in DeSoto County and joined in the DCAP Petition. Petitioner, Charlotte County, and Intervenors, Sarasota County and Lee County, are political subdivisions of the State of Florida. Intervenor, the Authority, is a regional water supply authority established under Section 373.196, Florida Statutes, and created by interlocal agreement to supply wholesale drinking water to its member governments and to approximately 100,000 residents of Charlotte, DeSoto, and Sarasota counties, most of whom reside in Charlotte County. Intervenors, ECOSWF and Manasota-88, are not-for-profit environmental organizations. IMC and the Department agreed to the standing of the Petitioners and Intervenors to participate in these proceedings. Environmental Resource Application General In 1993, the Legislature directed the Department and the water management districts to combine the Management and Storage of Surface Water (MSSW) program, administered by the water management districts pursuant to Chapter 373, Florida Statutes, and the Dredge and Fill Program, administered by the Department pursuant to Chapter 403, Florida Statutes, into a single permitting program, the ERP Program. The Department and the water management districts worked jointly to merge the two programs. The process was completed in 1995, when the rules implementing the ERP Program took effect. The MSSW permits were issued by the water management districts for construction activities that would significantly alter surface water flow or otherwise affect surface water management systems. The dredge and fill permits were issued by the Department for activities proposed in surface waters and wetlands. The ERPs are now issued by the Department pursuant to Chapter 373, Florida Statutes, which requires the issuance of an ERP for any construction activities in or seeking to alter certain waters and wetlands. ERP applications for phosphate mining are submitted to, processed and evaluated by, the Department's Bureau of Mine Reclamation (Bureau) pursuant to Chapter 373, Florida Statutes, and specific rules. By law and interagency agreement, the Department issues ERPs for proposed phosphate mining operations. The Bureau conducts an initial review and may request additional information. Upon review of the initial application and responses, the Bureau determines whether the application is complete. Unless waived by the applicant, the Bureau has 90 days within which to take agency action, i.e., either grant or deny the application. ERPs are divided into the construction and operation phases. During the construction phase of a phosphate mining operation, an applicant conducts the mining and related activities, including the actual preparation and mining of the land. After mining, an applicant pumps sand tailings back into the mine cuts, re-contours the land and plants the appropriate vegetation, also known as the reclamation process. After reclamation, the Department inspects the site and determines whether on-site wetlands can be properly reconnected to waters of the state. Reconnection typically occurs when the Department determines that the site functions as a self-sustaining natural system, and water quality standards are met. Following reconnection, the operational stage of the ERP begins because the property is then a natural site and self-sustained. Throughout the construction and operation phases, the Department continually inspects the property. A site will not be released from permit requirements until all permit conditions have been met. For ERP permits issued within the Southwest Florida Water Management District (SWFWMD), the Department incorporated by reference certain sections of Chapters 40D-1, 40D-4, 40D-40, and 40D-45, Florida Administrative Code, and specific provisions of the Basis of Review for Environmental Resource Permit Applications (1995) (ERP BOR), as its permitting criteria. See Rule 62-330.200(3)(a)-(e), Florida Administrative Code. The main permitting criteria followed by the Department in issuing ERP permits for activities within the SWFWMD are contained in Rule 40D-4.301, Florida Administrative Code (Conditions for Issuance of Permits), and Rule 40D-4.302, Florida Administrative Code (Additional Conditions for Issuance of Permits). Both rules became effective in 1995. Prior to the merger of the Department and the water management districts' functions under the Department's regulatory umbrella, the various districts had slightly different conditions for the issuance of permits. The Department and all of the districts developed one version of these rules, which were then adopted by the four districts (without the Northwest Water Management District, which does not implement the program) to promote uniformity. In turn, the Department incorporated the above-mentioned rules by reference. Thus, for example, Rules 40D-4.301 and 40D-4.302 are a blending of the previous MSSW rules with the previous dredge and fill rules. In evaluating ERP permit applications, the Department considers the SWFWMD's (as well as other water management districts) historical interpretation of the rules which have been adopted by the Department, although the Department is not bound to adopt former SWFWMD interpretations nor does the Department defer to the SWFWMD's interpretation of these rules. Until this proceeding, the Bureau evaluated adverse water quantity and flow impacts based on a standard that limited post-mining flows and mass volume to 105 percent and 85 percent of the pre-mining flows and volumes, respectively. As a direct result of the filing of a challenge to this policy, the Department will not rely on this policy as a basis for decision in this proceeding. See Charlotte County, Florida, and Peace River/Manasota Regional Water Supply Authority v. Department of Environmental Protection and IMC Phosphates Company, DOAH Case Nos. 01-2399RU and 01-2412RU (Settlement Agreement July 6, 2001). In this de novo proceeding, IMC has the burden to establish reasonable assurances in a variety of contexts. See, e.g., Rules 40D-4.301 and 40D-4.302, Florida Administrative Code. 2. The Manson Jenkins ERP Application Review Process On October 1, 1999, IMC submitted to the Department an application for an ERP for authorization to mine phosphate, reclaim, and conduct associated activities on the Property. The Manson Jenkins Project is an extension of the existing Fort Green Mine, which is contiguous to the Property. The Department reviewed the information contained in the initial application and issued a series of requests for additional information. IMC provided responses to these requests on February 7, June 5, July 15, September 6, and October 11, 2000. Thereafter, the Department determined that the application was complete and issued a Notice of Intent to Issue (NOI) an ERP to IMC on February 8, 2001. This NOI was published in the Bradenton Herald on February 12, 2001. The parties stipulated that "Chapters 373 and 403, Florida Statutes, and the rules promulgated pursuant thereto are the applicable law in this proceeding." However, the parties disagree regarding which specific statutes and rules apply here. 3. Draft Environmental Resource Permit The Department's NOI includes a draft ERP. This permit is issued under the authority of Part IV of Chapter 373, Florida Statutes, and Chapter 62, Florida Administrative Code. The draft ERP authorizes IMC, in part, "to mine or disturb approximately 361 acres of wetlands for phosphate mining and associated activities . . . . The mitigation/reclamation will consist of approximately 537.8 acres of wetlands . . . . The project will also disturb 1988.1 acres of uplands for phosphate mining and associated activities [and t]he reclamation will consist of 1811.3 acres of uplands . . ." in a variety of land formations. IMC voluntarily agreed to provide a two-phased Conservation Easement consisting of not less than 521 acres, consisting "of [during phase one] not less than 182 acres associated with the no-mine area of the West Fork of Horse Creek, which shall be preserved from mining associated disturbance" and, during phase two, "an additional 339 acres of created wetlands and encompassed stream associated with the West Fork of Horse" Creek. The Conservation Easement is not considered part of the mitigation offered by IMC. The Conservation Easement authorizes the Property owners to use these areas after reclamation and release of the Property. The draft ERP contains general conditions, and specific conditions requiring, in part, monitoring to assure that the proposed mitigation of waters and wetlands is completed in accordance with success criteria contained in the draft ERP; monitoring to assure that groundwater levels are maintained at appropriate levels in areas undisturbed by mining or mining related activities; and numerous other legally enforceable conditions of approval. Phosphate Mining Geological Background and Phosphate Mining Process Millions of years ago, the oceans were rich in phosphorous. At that time, central Florida was under water. Over geological time, certain organisms decayed and settled to the bottom of the ocean. After the waters receded, deposits of phosphate were covered by land. Essentially, phosphate is the product of marine deposits. Although deposits are located in other states, such as Idaho and North Carolina, the largest phosphate rock deposit in the United States is in Central Florida, including the Manson Jenkins Property. The deposits of phosphate-bearing material are referred to as the "matrix," which consists of one-third phosphate, one-third sand, and one-third clay. On the Manson Jenkins Property, the entire matrix or ore body is approximately 15 to 18 feet thick. This phosphate matrix layer is buried under a layer of soils, rocks, sand, and clay, known as the "overburden," which is up to approximately 33 feet thick. There is a layer beneath the matrix which is 150 to 200 feet thick which is a confining layer of dense clay and separates the surficial aquifer from the intermediate aquifer. The phosphate to be mined on the Property is above the bed clay and the top of the intermediate aquifer system. Because the matrix is overlain by the overburden, the only way that it can be accessed and removed is through a surface mining operation. The first step prior to any land disturbance associated with phosphate mining is the installation of a "ditch and berm" system around the proposed mining area. The ditch and berm system is referred to by the Department and the United States Environmental Protection Agency (EPA) as a "best management practice" (BMP). The ditch and berm system for the Property will be designed and installed pursuant to specific criteria. This system is designed to preclude a direct release of impacted water from the mining area to adjacent land, and wetlands or waters, such as streams. The ditch and berm system can be expected to operate appropriately and efficiently if it is constructed, operated, and inspected in accordance with the design criteria described by IMC engineers. A properly designed, constructed, and operated ditch and berm recharge system will effectively maintain water levels outside of the mine areas. A berm is a small embankment which has an inspection roadway on top which is typically 12 to 15 feet wide and has a fairly flat downstream slope. The berm is designed to be flat and stable. The primary purpose of the berm is to prevent water that is collected in the ditch from overflowing into the preserved areas and other undisturbed areas and creating, among other things, potential water quality problems. This system is also designed to prevent water that may be associated with the mining activity from moving off-site to adjacent, undisturbed areas, including wetlands or waters and to protect the ecology of the area outside of the berm. Another function of the system, including the recharge ditches, is to maintain groundwater along the boundaries of the property line so that undisturbed areas outside the mining area will remain at pre-mining conditions. Water levels are actively maintained in the ditches surrounding mining areas to assure that the mining excavations do not drain groundwater from adjacent areas. Preserved areas are also surrounded by ditch and berm and recharge systems that hydrate the area so that, for example, existing wetlands are not degraded. Prior to mining a to-be-disturbed area, the ditch portion of the ditch and berm system acts to collect water and carry it to an area where it is pumped into a recirculation system. The ditch and berm system also typically acts as a recharge system. IMC will design, construct, and operate a recharge system that will maintain the water level in the area immediately adjacent to the mine cuts. The water that is in the recirculation system consists of rainfall, water from the deeper aquifer systems, water from the surficial aquifer system that drains into the mine cuts, and runoff that is captured behind the ditch and berm systems. Prior to mining, IMC will install monitor wells at regular intervals along the recharge ditches, which will be located adjacent to either preserved areas or adjacent to property owned by someone else other than IMC, who would be concerned about drawing the water level down beneath his property. The monitor well gauges will give an indication as to the baseline water levels, the fluctuations of the water level, and the high water levels along the preserved areas. The monitor well gauges can also be read to ensure that the water in the recharge ditch is getting into the ground and maintaining the water table at the same level it was prior to mining. Water can also be drawn from nearby wells which can be used to make up the water that seeps out of the recharge system. IMC currently operates approximately 75 miles of perimeter ditches and berms at various mining operations. IMC has resolved compliance issues relating to recharge ditches (because of dewatering concerns) on the Fort Green Mine. Compliance issues, including the Four Corners Mine, have been reported by IMC to the SWFWMD. Also, IMC has had other unpermitted discharges related to its ditches and berms, which have been resolved by consent orders. Compliance issues regarding the East Fork of the Manatee River have not been resolved completely, as the SWFWMD has not closed its enforcement files. IMC will continue to act to resolve these issues until reclamation is completed around the East Fork. Notwithstanding these compliance issues and the related problems, the weight of the evidence indicates that IMC is capable of designing, constructing, and maintaining the proposed ditch and berm system, including the recharge ditches, on the Property in order to avoid past problems which resulted in, for example, dewatering of property. These problems can be significant and, if left undetected and unremedied, can cause serious consequences. Careful and timely monitoring, and continued self-reporting of non-compliance by IMC is imperative. The SWFWMD has issued a consolidated water use permit for the Property. Under this permit, IMC has reduced its daily permitted pumping by an average of over 50 percent. Prior to mining, an alternate flow way (AFW) will also be constructed to carry water that was previously flowing from the northwestern portion (boundary) of the Property to the preserved area to the south of the Property. The AFW will temporarily replace the conveyance and storage of the portions of the West Fork of Horse Creek that will be mined. The AFW is likely to be removed in years 5 to 6 of mining. See Findings of Fact 87-94. Once the ditch and berm system is in place, the land is cleared to prepare for mining. The area is mined in strips or rows. After clearing, large electrically powered draglines remove the overburden layer to expose the phosphate-bearing matrix. The overburden is cast into an open adjacent mine cut, exposing the matrix for mining. These same draglines then extract the matrix and place it in depressions created at the mine which are called "slurry wells" or "pits." The matrix is then mixed with water in the pits to form a slurry which is conveyed hydraulically through a series of pipes and pumps to a "beneficiation" plant to remove the phosphate rock product from the matrix. The recovered phosphate matrix contains phosphate rock, clay, and sand. At the beneficiation plant, the phosphate rock, sand, and clay are physically separated. The phosphate rock is stored prior to additional processing required to convert it to fertilizer at off-site facilities. The sand is hydraulically transported back to the mining areas for use in land reclamation. The clays are generated from the beneficiation process and hydraulically transported to a clay settling area (CSA) where they are dewatered prior to reclamation. IMC plans to construct and operate two CSAs on the Property. However, the weight of the evidence indicates that approval of the ERP application at issue here, does not approve these CSAs because they have to be permitted and operated under separate Department regulations. See Findings of Fact 244-247 and 268. CSAs are a repository for the clay material. They are generally built in mined-out areas and built with the overburden material that is dragline cast in the mine cut. CSAs are necessary because, unlike sand which readily drains through water, clay materials are very light; and it takes time for the clays to settle out of the water, so the water can be reused in the re-circulation system. IMC expects that the two CSAs on the Property will ultimately be designed to handle the equivalent amounts of clays that will be mined from the Manson Jenkins Project. There will also be two CSAs immediately to the east of the Property on the Fort Green Mine, which will be operating as a result of the mining on the Property. Specifically, the CSAs proposed for the Property are expected to be constructed in mined-out areas (the northeast portion of the Property) and are expected to be surrounded by engineered dams approximately 40 feet above the surrounding land surface grade. One of the CSAs will encompass approximately 540 acres and the other 520 acres. After the clay is initially settled, specialized equipment will be used to dig drainage ditches and take other steps to expedite the settling process. This will allow a "crust" to form on the top of the clay surface. Thereafter, the dams surrounding the CSA (which are composed of overburden material) will be pushed in to cover a portion of the settled clays. The area will then be primarily uplands with relatively small wetland systems present. Years ago, settling areas would be reclaimed in 10 to 15 years. Today, with special mobile equipment, CSAs can be reclaimed within 3 to 5 years. Reclamation of the CSAs on the Property is expected to be completed within the 15 year timeframe contemplated for mining and reclamation activities. Once the matrix has been removed from a mining area segment, land reclamation commences. IMC expects to use four, different land reclamation techniques, including but not limited to, crustal development reclamation and land and lakes reclamation. These methods were described in detail during the hearing. Manson Jenkins Project Pre-Mining Conditions (Historical and Current Conditions of the Property) The Property encompasses approximately 2,808 acres in northeast Manatee County, Florida, which is largely owned by FP- 1 and FP-2 Corporations. IMC has a lease to mine the Property, having obtained these rights in 1993 when IMC entered into a partnership with Agrico Chemical Company, who, in turn, acquired the mining lease in 1986. The lease prohibits the owners from using the Property during mining, until it is released from reclamation. The owners have the right to use the Property prior to mining and after reclamation. The Parties stipulated that there are no archeological or historical resources located at the Property. The Peace River starts in Polk County, north of Bartow, and flows through Wauchula and Arcadia, and southwesterly to Charlotte Harbor. Horse Creek begins in the southern portion of Polk and Hillsborough Counties and flows south through Hardee County, approximately 40 miles to the confluence of Horse Creek and the Peace River in DeSoto County. The eastern boundary of the Property is the Manatee County-Hardee County boundary line. The Property abuts land to the east that is being mined and reclaimed by IMC as part of its Fort Green Mine, and the Manson Jenkins Project is an extension of that mining operation. According to a 1940 composite aerial, as interpreted, the Property contained wetlands that had not been ditched or drained. At the time, the West Fork of Horse Creek had not been channelized. The aerial indicates that there was a line of wetlands and a series of elongated marshes strung together, like a string of sausages, running south along the West Fork, and a distinct, yet not continuous, channel running southeast toward the southern boundary of the Property. The 1940 aerial, as interpreted, also indicates that the upland areas of pines had been cut. Cattle grazing is also apparent. The upland, however, consisted of very dense and rich undergrowth of range grasses, palmettos, low shrubs, and other assorted species. As of 1950, herbaceous wetlands existed at the north end of the Property and a vegetative cover existed between that wetland and the forested portion of the Property at the southern end. At that time, there was no channelization. As of 1965, the West Fork of Horse Creek, in or around the middle of the Property, had been channelized and heavily ditched. The area in the northeastern portion of the Property had been impacted by agriculture and row crops. The wetlands had been drained and tied into these ditches. The native range had been removed. IMC and its predecessors did not participate in the drainage of the Property for agricultural purposes. The present condition of the Property is very similar to the condition as of 1965. There is an approximately 3-square-mile area north of the Property which drains through a marsh, down to the West Fork of Horse Creek. The West Fork of Horse Creek, which enters the northwest portion of the Property, bisects the entire length of the Property in a north-south direction, and is channelized. The West Fork of Horse Creek is a first order stream because of its location in the watershed. See Findings of Fact 234-236. There is a headwater marsh area which leads into the northwestern portion of the Property and is part of West Fork of Horse Creek. The uppermost portion of the West Fork on the Property, which will be mined, has been referred to as "a channelized or ditch portion" or a "wide ditch." This includes the headwater marsh area. There is a "complex of wetlands" in the northwest corner of the Property which contribute water flow down the West Fork. There is a large ditch in the middle of the headwater marsh which conveys most of the water through the system and down the center of the Property. This portion of the West Fork of Horse Creek does not have the upland vegetation that is usually associated with a stream bank. Its ecological value is less than what is generally found in other first order stream or headwater systems. While the experts diverge on this issue, the weight of the evidence indicates that while the headwater marsh area to the north of the Property and in the northern portion of the Property has hydrological importance, the West Fork of Horse Creek is not a regionally significant stream. The weight of the evidence indicates that the West Fork of Horse Creek is a tributary of Horse Creek which, in turn, is a tributary of the Peace River. However, it is unclear whether the West Fork of Horse Creek is a work of SWFWMD. Assuming that it is, reasonable assurances have been provided that this project will not cause adverse impacts to the West Fork of Horse Creek in light of the mitigation offered by IMC and the proposed reclamation of the area and the reasonable expectation that this area will be improved from its current state. See Finding of Fact 257. There is also an area on the West Fork of Horse Creek and to the southeast of the Property (Section 13) which will be preserved and not mined, which is a combination of a channel system and forested uplands and wetlands. Walker Road runs north and south and is located in the middle and west of the West Fork of Horse Creek on the Property. Walker Road follows the proposed AFW. There is also a dirt or shell road which runs west to east across the West Fork of Horse Creek on the Property and a spillway structure at this location. The spillway structure was used by the landowner in agricultural practices to control the flow of water to irrigate the crops in the northeastern portion of the Property. The Property is located in the West Fork of Horse Creek, Manatee River, and Myakka River Basins, and in the far western part of the Peace River Basin. IMC's ERP Application contains approximately 300 acres, west of Walker Road (part of Sections 2 and 11) and in the northwestern portion of the Property in the Manatee River Basin. (Approximately 17 acres of wetlands in this area will be mined and will be replaced with approximately 51 acres of wetlands. See Findings of Fact 95-96 and 211.) This area is not part of the Development of Regional Impact approved by Manatee County, although IMC plans to request permission from Manatee County to mine this area, and if approved, IMC would mine less than 200 acres. This portion essentially drains into the Manatee River. Further, IMC has included the southwest triangle of these 300 acres as a preservation area. This area contains, among other land covers, mixed wetland hardwoods and freshwater marshes. There is another portion of the Property in the Myakka River Basin, approximately 32 acres, located in the southwest corner of the site. (There is also a small wetland in this area consisting of approximately 4 acres of wetlands which will be replaced with approximately 12 acres of wetlands. See Findings of Fact 95-96.) This portion drains through a drainage ditch and eventually enters Wingate Creek and the Myakka River. The balance, and by far the largest portion of the Property, is located in the Peace River Basin. After leaving the Property boundary to the south, the West Fork of Horse Creek joins the main branch of Horse Creek approximately 3 to 3.5 miles south of the Property line. Horse Creek then joins the Peace River approximately 30 miles from the Property boundary. The Peace River then empties into Charlotte Harbor approximately 40 miles from the Property. Today, the predominant land use on the Property are improved pasture and agricultural ditches. In order to achieve this cover and use, an extensive surface drainage system was constructed to drain isolated marshes into the West Fork of Horse Creek and to reduce the flood stage elevations within the creek itself. In areas with less extensive ditching, the existing vegetative communities more closely approximate natural systems. The improved pasture has been planted with bahia grass and other exotic pasture grasses. In recent years, a large portion of the pasture area has been converted into a sod farm and the sod has been stripped from that area leaving a large area of bare semi-vegetative soil. The Property is not pristine or close to its original condition, although, as argued by Charlotte County and others, portions of the Property do provide ecological functions. The wetlands on the Property have been subjected to extensive agricultural ditching. The main ditch is quite wide and deep, and there are many side ditches that proceed into smaller wetlands. There are also some lands that have not experienced conversion to improved pasture which, for the most part, are scheduled for preservation. IMC plans to mine, in part, the channelized portion of the West Fork of Horse Creek from north to south to the preserved area where the more heavily vegetated and forested portion of the natural stream channel of the West Fork of Horse Creek is located. This area will be blocked off during mining by a ditch and berm system. IMC will construct an AFW to carry the water that was previously flowing from the northern area (that is not part of this project and is not owned by IMC) around the area to be mined in the stream channel, which will be reconnected into the preserved area to the south. See Findings of Fact 87-94. From a hydrological standpoint, the to-be-mined marsh and channelized stream segment will be replaced with a flow- through marsh and recreated stream segment that connects the area to the north with the preserved portion of the West Fork of Horse Creek. The uplands will be placed back to the same elevations existing pre-mining and additional wetlands added. The marsh and the vegetative part of the stream will be slightly bigger. Proposed Mining Activities (Mine Sequence for the Property) IMC proposes to mine 2,348 acres of the 2,808 acres on the Property in approximately 6 to 9 years. The mining activities at the Property will follow the general sequence outlined above. Reclamation is expected to begin within 3 to 4 years after the commencement of mining operations, except for the CSAs. The mining and reclamation activities are expected to completed within 15 years. IMC will construct an AFW in year one (and prior to mining) of the mining activities. The AFW should be tied into the preserved area in the southern portion of the Property as soon as feasible in order to minimize the impacts to this area and downstream. The AFW is necessary because IMC intends to mine approximately 1.6 miles of the channelized or ditched marsh and stream portion of the West Fork of Horse Creek located in the northwest to middle portion of the Property. The AFW is designed to temporarily replace the conveyance and storage of the portions of the West Fork of Horse Creek that will be mined north of the preserved area. The AFW will carry water that was previously flowing from the northwestern boundary of the Property to the preserved areas to the southern portion of the Property. In this manner, if constructed and operated properly, it is expected that the proposed mining and related activities at the project area will not cause adverse flooding to on-site or off-site property and will not cause adverse impacts to existing surface water storage and conveyance capabilities. Further, the AFW and downstream areas will not be expected to suffer from erosion as a result of the installation of the AFW. The slopes and bottom of the AFW will be a vegetated channel designed to receive surface water runoff from the area north of the Property and convey it southward and then eastward back into that portion of the West Fork of Horse Creek on the Property which is part of the area being preserved in the southern portion of the Property. The bottom of the AFW will be vegetated with wetland type vegetation and will provide a habitat for fish and other wildlife. The AFW will not be used until the vegetation has become established. Vegetation is an effective method for minimizing erosion in a flow way or stream as described here. The design recommendations also require that the ends of the access corridor be stabilized so if they are subjected to overflow during the 25-year or 100-year storm event, they will be protected from erosion. Any sharp bends in the AFW will be stabilized prior to being put into service. The size of the AFW (50 feet wide) was revised and adjusted so it could carry the expected flows without backing the water up and causing water elevation to be above that which existed historically. The actual design of the AFW has been modified in accordance with the ERP conditions. The Draft ERP, "Specific Condition 4. c." provides: An alternate flow way shall replace the headwater marsh and wetlands of the West Fork of Horse Creek during site preparation, mining, and until the reclamation is re- connected. The alternate flowway will begin south of the north project boundary and end at the north end of the preserved wetlands, as shown on Figure IV F. The alternate flowway will convey water from areas north of the north project boundary south into the unmined portions of the West Fork of Horse Creek. The AFW shall be constructed as a trapezoidal channel with a minimum bottom of with [sic] of 50 feet and side slopes no steeper than 3 ft horizontal to 1 foot vertical, (3H to 1V). A recharge ditch and associated berms shall be placed along the entire east side and portions of the west side of the alternate flowway as noted in Figures IV F and IV F(a). To ensure maximum water quality treatment, the flowway will be planted with a variety of herbaceous wetland species such as pickerel weed Peak level recording devices will be placed at the north end, south end, and just north of the half Section line of Section 11. The top of the recording tube and the cross section elevations of the alternate flowway will be surveyed at the time of installation. This data will be submitted with the first monitoring report. Stream flows will be measured in conjunction with the quarterly mine inspection at each peak level station until the reclamation is reconnected to the West Fork unmined area. IMC-Phosphates shall submit monthly flow data and rainfall data to the bureau for review and approval. IMC-Phosphates shall not conduct any activities that result in a violation of Class III water quality standards within the West Fork [of] Horse Creek flowway. If at any time the water quality fails to meet [C]lass III standards, the bureau shall be immediately notified and corrective measures implemented. The reconstructed stream channel, like the AFW, will be vegetated and not placed into service until the vegetation is established. IMC proposes to disturb 361 acres of jurisdictional wetlands on the Property. This acreage comprises approximately 4, 17, and 330 (approximately 351 acres according to Dr. Durbin) acres in the Myakka, Manatee, and Peace River Basins, respectively. The balance of the Property will be reclaimed as uplands. See Findings of Fact 218-219. IMC will reclaim 538 acres of wetlands for the 361 acres of disturbed wetlands, consisting of approximately 12, 51, 475 acres of wetland mitigation in the Myakka, Manatee, and Peace River Basins, respectively. IMC proposes to preserve approximately 316 acres (approximately 45 percent of the wetlands on-site) of jurisdictional wetlands on the Property, including over 70 percent of the forested wetlands on-site. By eliminating existing agricultural ditching and providing appropriate mitigation, and by providing upland buffers around the wetlands, the post-reclamation condition of the Property is expected to be better than the current condition of the Property. Conditions for Issuance Water Quantity Impacts Surface Water General During the final hearing, substantial evidence was presented concerning the potential impact of mining on surface water flows across the Property and downstream. Pursuant to Rule 40D-4.301(1)(a) and (b), Florida Administrative Code, an ERP applicant must provide reasonable assurance that its proposed activities will not cause adverse water quantity impacts to receiving waters and adjacent lands and will not cause adverse flooding to on-site or off-site property. Dr. Garlanger is an expert in hydrology and hydrologic modeling with special expertise in surface and ground water systems associated with phosphate mining operations and reclaimed mined lands. IMC requested Dr. Garlanger to assess the potential impacts of the proposed mining and reclamation on the hydrology of the Property, and also to assess the potential hydrological or hydrogeological impacts downstream from the site to wetlands or waters of the state. Dr. Garlanger used models to assist him in assessing the nature, scope, and the extent of any future impacts resulting from the phosphate mining. Modeling requires the making of calculations relating one variable to another. Scientists, such as Dr. Garlanger and others who testified during this final hearing, who run comparative water balance models to calculate the differences in daily stream flow leaving a project site at the project boundary, must take into account several factors associated with the hydrological cycle, including the following: 1) the typography of the site; 2) the hydraulic conductivity or permeability of different soil levels; 3) the transmissivity of the different aquifer systems; 4) the geometry of the stream channel; 5) the amount and timing of rainfall on-site; 6) the amount of surface runoff; 7) the amount of evapotranspiration (ET); 8) the amount of deep recharge to the Floridan aquifer system; 9) the amount of groundwater outflow, including that portion of which makes it to the stream and becomes base flow; and 10) the temperature, wind speed, and amount of solar radiation, because they control ET. Each of these issues was reasonably evaluated by Dr. Garlanger. The weight of the evidence supports the accuracy, completeness, and conclusions of Dr. Garlanger's modeling work. Dr. Garlanger has been reviewing hydrological aspects of mining projects since 1974 for phosphate mining projects that require hydrological and hydrogeological analysis reflecting the unique aspects of mining operations. Dr. Garlanger explained how professional judgment was applied in his engineering calculations and how his model input data are reasonable. He also explained that he used reasonable information estimates to conduct this particular modeling work, which are consistent with measured data. Surface water flows are dependent on two sources: rainfall runoff from adjacent areas and groundwater that enters surface water streams and is sometimes referred to as "base flow." The weight of the evidence demonstrated that during mining activities the act of confining mining areas by the ditch and berm system would capture the rainfall runoff on these areas and thus reduce that rainfall runoff contribution to the ditched segment of the West Fork of Horse Creek (prior to the time that it is mined), the AFW during its operation, and the reclaimed West Fork of Horse Creek (during the time that mining continues to occur in the vicinity). During the active mining and reclamation activities, the ditch and berm system operates to maintain groundwater levels in areas undisturbed by mining at pre-mining conditions. Water levels are actively maintained in the ditches surrounding mining areas to assure that the mining excavations do not drain groundwater from adjacent areas. Thus, during the active mining and reclamation activities, the base flow component of surface water is not likely to be affected. The weight of the evidence demonstrates that the base flow contribution to surface water flows through the AFW, when operational, will be somewhat higher than is present in the West Fork of Horse Creek during pre- mining conditions. After mining and reclamation are complete, the ditch and berm systems will no longer be needed and present at the Property, and thus rainfall runoff is not expected to be captured thereby. More wetlands, however, will be present at the Property after reclamation is completed than are now present. These wetlands tend to "use," through ET, more water than a comparably sized upland area. Thus, after reclamation is completed, there will be a reduction in the amount of water contributed from the Property to the flow of water in the reclaimed and preserved portions of the West Fork of Horse Creek. The weight of the evidence indicates that the proposed mining and reclamation activities at the Property will not cause any adverse impacts on surface water quantity at the Property during active mining and reclamation or thereafter, and that there will be no adverse impacts at downstream locations. 2. Rainfall Predictive modeling was carried out by Dr. Garlanger to assess the potential significance of rainfall runoff capture and base flow reductions anticipated during mining and after reclamation of the Property. The model efforts simulated stream flow conditions on a daily basis, assuming that the Property experienced rainfall of the same frequency and duration as had occurred during a 19-year period from 1980 to 1998 at the Wauchula rainfall gauge. The amount of rainfall drives the hydrological model because it determines the amount of groundwater outflow, the amount of surface water runoff, and basically determines the amount of stream flow. The volume and timing of rainfall are important factors to consider; information regarding the variability of rainfall is a critical input into any model. In mining operations, discharge volumes correspond directly to rainfall. When rainfall volumes increase, mining operations' discharges increase. When rainfall volumes decrease, mining operations' discharges decrease. Thus, rainfall is the primary controlling factor in the volume of water discharge from a phosphate mine. The Property is located in the Peace River Basin. See Finding of Fact 75. Information is available from the National Climatic Data Center (Center), the government archive for climatic data, which indicates the occurrences of annual rainfall in the Peace River Basin between 1933 and 2000. The Center is a reasonable source of rainfall data. From 1933 through 2000, the arithmetic average of the rainfall in the Peace River Basin was 52.3 inches. (The average rainfall was collected from five stations throughout the Peace River Basin and then averaged.) However, within this period, there is significant variation in rainfall between the high and low rainfalls. There have only been four occurrences when the rainfall has been between 51 and 54 inches during this time frame. The record low rainfall of 35.9 inches occurred in 2000 in a significant drought year. The highest rainfalls have been in the 72 to 75-inch range and near 75 inches on two occasions; thus, a model must be based on more than one year of data. Dr. Garlanger examined the daily rainfall for a 19- year period between January 1980 and December 1998. This rainfall was measured at Wauchula, which is a town in the Peace River Basin almost due east of the Property and located on the Peace River. The weather station collects daily rainfall data and the Center is the source of this information. The average rainfall at Wauchula for this 19-year period is 52.17 inches, similar to the 1933 through 2000 period mentioned above, and also indicates that there is significant daily variability of rainfall. The claim that the accuracy of Dr. Garlanger's modeling is questionable because IMC's modeling "only uses rainfall information from the Wauchula rain gauge" is not persuasive. Dr. Garlanger reasonably chose this particular period of time, 1980 to 1998, and the location for several reasons. First, the data was available from the Center and is reliable. Second, the average rainfall that he used in the Peace River Basin is the average from five stations in the Basin, not just from one station. Third, Dr. Garlanger also considered the data from a rain gauging station approximately 3 miles downstream from the Property where Horse Creek crosses State Road 64, and the average rainfall was about 52.2 inches, which is similar to the 19-year period of data for the Peace River Basin. It is also argued that Dr. Garlanger "fabricated certain rainfall data." In rebuttal, Dr. Garlanger agreed that a data gap of approximately 7 months existed in the rainfall record at the Wauchula station, which he used. He described the efforts made by his assistant in supplying data for the missing period of record, which included an examination of the average rainfall for the other 18 years, for a particular day which was missing from the original data set. The weight of the evidence shows the calculations for these missing months out of the entire 19-year record did not adversely affect the overall conclusions of Dr. Garlanger's modeling work, including the predicted impacts. It is also suggested that Dr. Garlanger's modeling work improperly "omits a 3 square mile of the West Fork of Horse Creek watershed . . . that is critical to judging environmental impacts and changes in flow on the Manson Jenkins Property." While the entire Horse Creek watershed exceeds 200 square miles, an area of approximately 10 square miles composes the Horse Creek watershed upstream of the Property. A portion of IMC's Fort Green Mine is located in the West Fork of Horse Creek watershed. This portion of the Fort Green Mine includes approximately 3 square miles of catchment area. While IMC's Fort Green Mine is not currently contributing surface runoff to the West Fork of Horse Creek, the 3 square miles lying in the Fort Green Mine catchment area still comprise part of the overall Horse Creek Basin. In order to properly evaluate any impact on existing flow expected from Manson Jenkins activities, Dr. Garlanger reasonably did not select the 10-square mile historic basin, which would include the 3 square miles of Fort Green Mine catchment area and which, if included in the modeling assumptions as part of the watershed, would produce more favorable, higher flows. Rather, Dr. Garlanger reasonably used the current condition or baseline condition, which is the approximately 10 square miles of the historic basin minus the 3- square mile catchment area of the Fort Green Mine, approximately 6.2 square miles, in order for a valid comparison to be made of the potential effects that Manson Jenkins activities would have on existing flow. Dr. Garlanger's exclusion of this 3-square mile area in his modeling for the project was prudent to predicting what, if any, flow impacts would occur on a daily basis and under existing conditions. Dr. Garlanger's modeling work reasonably predicted both (1) the runoff that would occur on a daily basis over the next twenty years if no mining were to occur and (2) the runoff that would occur given the same rainfall record during mining and post-reclamation conditions at the Property. It was reasonable to use the same rainfall record in comparing these two scenarios in order to get a model comparison that accounted for pre-mining, during-mining, and post-reclamation conditions. 3. Evapotranspiration The reasonableness of Dr. Garlanger's modeling work is illustrated by the predictive accuracy of Dr. Garlanger's ET data as compared to measured data. Dr. Garlanger's model estimated ET on a daily basis, and the same ET values were used by Dr. Garlanger for the same types of vegetation cover. Dr. Garlanger compared the predicted daily ET with the ET calculated on actual, measured stream flow data along with the estimate of the rainfall in the Horse Creek Basin for the period from 1980 through 1998. Dr. Garlanger's predicted ET for the Property was 39.2 inches per year. The ET data from Horse Creek at State Road 64 is 40.3 and at State Road 72 is 39.9. Thus, Dr. Garlanger's predicted ET was within 2 percent or 3 percent of the data from these stations where the stream flow was measured. 4. Flow Impacts Using the reasonable meteorological data assumptions noted above and applying accepted hydrological and other physical laws, Dr. Garlanger used the model to predict anticipated flow conditions at the Property and downstream. The modeling results demonstrate that flow in stream segments which receive rainfall runoff and base flow contribution from the Property would be reduced only during the relatively small percentage of time that the streams would normally exhibit high flow conditions. For example, at the southern Property boundary line, the flow in the West Fork of Horse Creek during active mining and reclamation activities is predicted to be reduced only during the higher flow periods which exist for 10-20 percent of the time during the year. For the remaining 80-90 percent of the year flow reductions are not anticipated. After reclamation is completed, flow in the West Fork of Horse Creek at the Property line is predicted to be reduced only during approximately 5 percent of the time during the year when high flows are experienced in the stream. The only impact of the anticipated flow reductions during high flow periods at the Property boundary will be to reduce the depth of the water within the channel of the stream at that point. At the southern boundary of the West Fork of Horse Creek as it leaves the Property boundary, during the operation of the AFW, there should be no decrease in average stream flow, and there may even be a net increase in stream flow. During years 6 through 13 of the mining/reclamation sequence, or the mine life, Dr. Garlanger calculated there would be a decreased stream flow leaving the Property boundary of approximately 1.4 cubic feet per second (cfs) on an annual average basis as a result of mining activity, assuming the average rainfall during that period is 52 inches and the area has the same rainfall distribution as in Wauchula from 1980-1998. (The 1.4 cfs decrease applies downstream as well, but reflects Dr. Garlanger's worst case assumption.) Dr. Garlanger further testified that the slight decrease in flow in the Horse Creek, corresponding to a decrease in flow depth of a few inches when the flow depth in the Horse Creek is between 7.5 feet and 12.8 feet, will not cause adverse water quantity impacts. Dr. Garlanger compared on a daily basis the predicted reduction in stream flow resulting from mining to the baseline pre-mining condition. This allowed Dr. Garlanger to predict the effect on the depth of water in the stream channel at various points in time during both high flows and low flows. Significantly, Dr. Garlanger's modeling work indicates that during higher rainfall events, that is, high flows, when most of the runoff would occur, the greatest effect as a result of mining occurs. Predictably, during the period when there are no rain events or small rain events, that is, when there is low flow, Dr. Garlanger's calculations show the Manson Jenkins activities have virtually no impact on flow. Consequently, the effects of IMC's proposed mining and reclamation activities are consistent with the permitting rules because IMC's mining activities will reduce rather than cause adverse flooding. Water leaving the Property travels downstream to Horse Creek and the Peace River and ultimately to Charlotte Harbor, about 40 miles downstream from the Property's southern boundary. Dr. Garlanger also assessed the timing and magnitude of flow reduction impacts at several points in these downstream locations. Once again, slight flow reductions during high flow conditions were predicted for downstream segments of Horse Creek and the Peace River with the magnitude of the flow reductions decreasing significantly as one moves farther downstream from the Property. It is expected that such reductions in depth will have no ecological significance. During low flow periods, no flow reduction impacts were predicted at these downstream locations. The flow in the Peace River at Arcadia and at Charlotte Harbor over the next 19-year period is not expected to be lower than the measured flow existing during the previous, historic 19-year period, such that any change will have an adverse water quantity impact. Water flowing from the Property ultimately enters the Peace River at a point downstream from the Arcadia gauging station where measurements are taken to control the ability of the Authority to withdraw water for municipal water supply purposes. Accordingly, the predicted reduction in flow during high flow conditions resulting from the permitted activities at the Property cannot be reasonably expected to adversely affect the Authority's legal rights to withdraw such water. See Findings of Fact 248-249. The Authority's water intake structure is located upstream (on the Peace River) of the confluence of Horse Creek and the Peace River. The predicted small reduction in flow during high flow conditions attributed to activities at the property, will have little or no impact on the Authority's capacity to withdraw water at that point. Furthermore, the freshwater-saltwater interface in the Peace River will be well downstream of the intake structure and cannot be expected to be impacted by any reasonably predicted reduction in freshwater flow caused by activities at the Property. The persuasive evidence in the record indicates that the predicted impacts calculated by permit opponents on the Peace River flow resulting from mining were not accurate. For example, pre-mining flow from both the wet season and the dry season is not identical and the calculation of average annual flow does not properly match wet and dry season flows. Additionally, the water quantity calculation errors included using the wrong number of days for both wet and dry season average flows, which overestimated the impact by 50 percent for the dry season and 100 percent for the wet season. Certain assumptions made by permit opponents concerning flow reductions due to industry-wide mining are not reliable. The assumptions concerning the amount of land that would be mined after 2025 exceeded actual available land to be mined by a significant percentage. It was assumed the area to be mined after 2025 is approximately 161,000 acres, when the amount of land that could be added to mining is less than 20,000 acres. (A high-side number might result in another 40,000 acres mined after 2025, which is approximately 25 percent of the estimates.) The overestimate of these assumptions resulted in a 100 percent higher reduction in flow in the Peace River at the Authority's water withdrawal point than would modeling estimates using reasonable assumptions. 5. "No-Flow Days" Analysis The record does not support the claim of an increase in the number of no-flow days in West Fork of Horse Creek at the Property boundary. The record shows there was no accounting (by party opponents) for the fact that flow from direct runoff is actually distributed over a period of time. The model incorrectly had runoff from a storm occur all on the day of the storm, rather than over a period of days. Contributing stream flow from the undisturbed area located upstream of the Property was also not considered. Dr. Garlanger's modeling data was not accurately transferred, and there is evidence that had the correct flow data from Dr. Garlanger's work been used, the increase in no-flow days would not have been calculated as they were and relied upon. Further, in rebuttal, and contrary to permit opponent's suggestion that Dr. Garlanger did not estimate no-flow days, Dr. Garlanger reevaluated his calculations and reconfirmed that, while there is an expected reduction in the flow, there is no increase expected in the number of no-flow days. Dr. Garlanger's modeling work is both professionally competent and reasonable in predicting Manson Jenkins activity flow impacts. 6. Model Calibration It is also argued that Dr. Garlanger's modeling work was "not calibrated." However, this argument is rejected based on the weight of the evidence. Dr. Garlanger explained that the model used for the Manson Jenkins Project was calibrated by the models used at another phosphate mine (the Ona Mine tract) located a few miles east of the Property. He also used the same input parameters for the Farmland-Hydro Mine in Hardee County. In this light, the model provided Dr. Garlanger with a reasonable estimate of both pre-mining or baseline condition and the post-reclamation condition, and also furnished him with a basis to estimate impacts during mining. In Dr. Garlanger's professional judgment, every input parameter used for the project's modeling work was reasonable and is accepted. Additionally, Dr. Garlanger compared the project groundwater outflow for the different sub-basins and found the outflow averaged 7.5 to 7.8 inches per year for all basins. Dr. Garlanger testified the measured groundwater outflows reported by W. Llewellyn, United States Geological Survey, averaged 7.7 to 8.9 inches per year in the Horse Creek Basin. Thus, Dr. Garlanger's modeling work, as to the groundwater component, was reasonably good predictive work. Furthermore, as discussed herein, the ET rate is one of the most important factors in determining the amount of water available to be discharged through the stream system. There is persuasive evidence that Dr. Garlanger calibrated the IMC model for ET. When referring to calibration, Dr. Garlanger referred to estimated ET from the different vegetative types on the Property. In this manner, Dr. Garlanger used the estimate of the average annual ET for the upland and for the upland wetlands. ET cannot be directly measured. Rather, it must be determined indirectly. Thus, estimates of the average annual ET are made by the modeler exercising professional judgment. The average daily ET value used in the modeling was determined based on total ET from the entire 218-square mile Horse Creek Basin down to the gauging site at Arcadia. Dr. Garlanger then determined what portion of the basin was upland, wetlands, or riverine wetlands, and what the ET values were for each of those systems. In disagreeing with Dr. Garlanger's model, permit opponents imply that Dr. Garlanger's ET numbers are unreliable as they "came from information . . . that indirectly measured ET for wetlands in the Everglades." Dr. Garlanger's initial ET used 50 inches per year for both riverine and upland wetlands. However, Dr. Garlanger knew that total ET rates for the system-types on the Property range between 36 and 39 inches per year. Thus, he had discussions with other hydrologic experts about his concern of using 50 inches of ET per year for both riverine and upland wetlands. In order to evaluate the appropriate ET rate for the Property, Dr. Garlanger also reviewed data from a study containing indirectly measured ET for wetlands in the Everglades, which systems can be compared to the wetlands at the Property. The Everglades data was contained in a scientific paper concerning a study performed in the Everglades by ecologists, limnologists, and physicists where they indirectly measured ET under various conditions. The Everglades professional study assisted Dr. Garlanger and other experts in determining, based on their professional judgment, what would be the appropriate and reasonable ET rate to use in the IMC model. 7. The Department's Review of the Models The Department, by and through the Bureau, reviewed the ERP Application for, among other things, comparison of pre- mining with post-mining conditions, the use of the AFW, and the best management practices of IMC, and concluded that reasonable assurances to issue the permit were provided under the permitting rules. Furthermore, the Department will continually evaluate the project's effects by the ongoing monitoring for impacts to site conditions, and the Department will perform quarterly inspections. It is typical for the Department to rely on the models and permit information that is submitted by the permit applicant's professional engineer. While Mr. Partney did not necessarily agree with portions of Dr. Garlanger's model analysis, he stated that "this approach is fine for planning and checking the feasibility of a plan." Mr. Partney maintained that, in his professional opinion, because the reclamation activity would result in a net improvement of the environment on the Property, an approximate 5 percent annual average decline in flow was not a concern. (Dr. Garlanger stated that a 5 percent or greater reduction of annual average flow is significant. However, for the reasons stated herein, Dr. Garlanger felt that the impacts would not be adverse.) Groundwater In the vicinity of the Property, groundwater is present in the unconfined surficial aquifer within the overburden and matrix and in the underlying confined intermediate and Floridan aquifer systems. Surficial groundwater levels in areas not disturbed by mining will be maintained by use of the ditch and berm system. Dr. Garlanger presented credible evidence that after reclamation, groundwater levels return to pre-mining elevations. Credible evidence was presented that in some cases, slightly more groundwater outflow to the streams and preserved areas is expected than to the same areas prior to mining. During active mining operations, there will be a short-term reduction in recharge of groundwater to the deeper aquifer systems in the immediate area of mining. This short- term reduction has no adverse impact upon water supply availability in the underlying aquifer systems and is largely offset by the increase referred to above. Underlying the CSAs, deep groundwater recharge will be increased over that experienced normally during the timeframe that the clays are settling. Once the clays are fully settled, deep recharge in these areas will be within the range that occurs naturally in the vicinity of the Property. Flooding 1. General Modeling submitted by IMC as part of the ERP application demonstrated that off-site flows after mining and reclamation would be in compliance with design requirements set forth in the 1995 SWFWMD Basis of Review adopted by reference by the Department. The AFW is specifically designed to assure that during its operation it had the capacity to carry anticipated flows from the drainage area north of the Property during high peak flow conditions without causing water to back up and flood that area or to cause flooding at downstream locations. After mining and reclamation, the reclaimed West Fork of Horse Creek will have sufficient capacity to handle anticipated storm events without causing flooding. The increased wetland acreage after reclamation will provide additional storage and attenuation of flood flows and, therefore, may actually reduce the possibility of flooding. It is asserted that IMC "did not evaluate the impact of long-duration flooding events." But, the ERP permitting criteria did not require long-duration flooding analysis of the natural systems as a condition for issuance of the permit. Even if IMC were obligated under the rules to specifically address long-duration flooding, the record shows there are no predicted adverse impacts from Manson Jenkins activities concerning long- duration flooding because the modeling shows any "event flooding" is likely to drain off before an adverse impact to a natural system would occur. 2. Recharge Ditches There is no substantial evidence to support permit opponents' claim that the flood analysis needs to be "redone" because of IMC's failure to account for the effects of seepage from the recharge ditches on the AFW. Dr. Garlanger predicted that the recharge ditches would result in an additional 3.26 cfs of flow in the AFW. Opponents' expert Mr. Zarbock testified that this additional increase was a reasonable calculation. Adding 3.2 cfs to the peak flow in the AFW predicted by the HEC-RAS model for the 100-year storm event results in a relatively small percent increase in the peak flow. This small increase in peak flow is an insignificant increase with no meaningful effect on the flood analysis and on actual water levels either upstream or downstream of the Property. Adding an additional 3.2 cfs of groundwater outflow to the West Fork of Horse Creek’s average annual flow of 5.5 cfs resulted in a 59 percent increase (not 99 percent as asserted by opponents) in the average annual flow, and is not expected to have a detrimental effect on the average flow in West Fork of Horse Creek, Horse Creek, Peace River, or Charlotte Harbor. 3. Integrity of Clay Settling Areas The weight of the evidence indicates that this ERP permit is not intended to address dam construction or to evaluate the sufficiency of dam design, both of which will be considered under other permitting processes. However, the record shows the proposed Manson Jenkins CSAs must be engineered dams designed, built, and operated to achieve full compliance with the stringent requirements of Rule 62-672, Florida Administrative Code, according to exacting standards concerning site investigation, soil testing, cross-section design work, stability analysis, and design safety factors. After construction, the dam will be inspected weekly. The Department does not require flood inundation studies for the type of dam proposed by IMC, although it is characterized by Mr. Partney as a significant hazard dam. These studies are only required by the Department for high-hazard dams, which the IMC dams are not. Additionally, Mr. Partney, Florida’s Dam Safety Engineer, advised that the Department has made recent changes that ensure that construction of the CSAs is improving. See Findings of Fact 244-247. Dr. Dunn admitted that "the probability of failure is low" for a CSA. IMC has been issued its Federal Clean Water Act NPDES Permit which authorizes IMC to conduct its operations, involving the use of water. The NPDES Permit also regulates the discharge of waters to the surface and ground. The NPDES permit has specific conditions to assure the safety of dams that IMC must comply with related to the construction and operation of the CSAs. Surface Water Storage and Conveyance Capabilities General Rule 40D-4.301(1)(c), Florida Administrative Code, requires the applicant to provide reasonable assurance that the project will not cause adverse impacts to existing surface water storage and conveyance capabilities. These issues are addressed in the prior section. However, additional issues are addressed below. 2. Depressional Storage Dr. Garlanger provided a reasonable explanation regarding whether an increase in depressional storage can be expected. Dr. Garlanger performed calculations based on the average thickness of phosphate matrix being mined. The removal of the phosphate rock from the matrix generally reduces the depth of the soil profile components by 1.7 feet. The overburden that is removed in order to access the phosphate matrix is "cast" back into the adjacent mine cuts and occupies a greater volume after it is removed for mining than it will prior to mining. In other words, the overburden "swells" after it is removed to expose the phosphate matrix. This "swelling" results in an increase in volume of the overburden somewhere between 10 percent and 15 percent. Thus, based on the measurements of the density of spoil piles performed by Dr. Garlanger, the overburden actually increases in thickness by about 3.3 feet, which would more than make up for the 1.7 feet reduction in thickness of the soil profile components resulting from the removal of the phosphate rock. Additionally, the sand and clay components of the matrix also increase in thickness after having been mined, processed at the beneficiation plant, and through the reclamation processes, which further increase the average thickness of the soil profile components. If there is an increase in the average thickness of the soil profile components, even though most of the increase is associated with the reclaimed clay areas, there cannot be an increase in depressional storage. 3. Reclaimed Land Forms and Reestablishing Hydrologic Regimes The storage and conveyance capabilities provided by the flow-through marsh and the stream segment that are proposed to replace the existing ditched segment will greatly enhance the surface water conveyance and storage capabilities on the Property. Specifically as to the AFW, IMC's engineers and consultants from Ardaman & Associates reasonably designed the AFW to adequately replace the conveyance and storage capabilities of the portion of the West Fork of Horse Creek that will be mined. Also, a Storm Water Management Plan, which is a required document by the Bureau, analyzed surface water discharges under both historic conditions and under post- reclamation conditions and determined sufficient storage and conveyance capabilities will exist during mining and post- reclamation. A primary purpose of the reclamation plan developed by IMC is to create a land use topography on the Property that will allow runoff to occur as it did under the pre-mining condition prior to the ditching that was completed decades ago. Even though land surface on average is higher due to the "swelling" of the materials used in reclamation, the reclamation is contoured so that there is no storage except for the storage that is purposefully left in the recreated wetlands. Party opponents claim that a review of other mine permit applications shows a hydrologic characteristic of "reduced runoff from storm events by approximately 15 percent of the pre-mining condition." However, Mr. Zarbock, in reviewing approved phosphate mine applications, did not see any such phosphate mine applications that showed a 15 percent (not higher than 12 percent) reduction in flow, nor could he identify any mine that experienced the percentage reduction in flow that he assumed in performing his calculations. Water Quality Impacts Surface Water Rule 40D-4.301(1)(e), Florida Administrative Code, requires reasonable assurance that the project will not adversely affect the quality of receiving waters such that enumerated water quality standards will be violated. The waters and associated wetlands of the West Fork of Horse Creek located on or downstream from the Property are Class III waters. Downstream from the Property, the West Fork meets Horse Creek and both Creeks continue as Class III waters until Horse Creek becomes Class I waters in DeSoto County. The Myakka River is Class III waters through Manatee County. (Approximately 4 acres of wetlands will be mined on the Property located in the Myakka River Basin, to be replaced with approximately 12 acres of wetlands. See Finding of Fact 77.) The Manatee River to the west of the Property, including the North and East Forks of the Manatee River, are Class I waters. See Rule 62-302.400(12)41, Florida Administrative Code (The Manatee River is a Class I river from "[f]rom Rye Ridge Road to the sources thereof ") The far northwestern portion of the Property is in the Manatee River Basin. (Approximately 17 acres of wetlands in this area are proposed for mining and will be replaced with approximately 51 acres of wetlands. See Findings of Fact 76 and 211.) These wetlands have a ditched connection between the these wetlands and other wetlands, which ultimately lead to the East Fork of the Manatee River. As a limnologist, Dr. Durbin agreed that these existing wetlands, even after reclamation, are part of the water source for the Manatee River watershed. Dr. Dunn stated that if the "[BMPs] operate as designed [he assumed], that there will not be water quality impacts" to the East Fork of the Manatee River during actual mining. Rather, he was concerned about (after mining and reclamation and before release) "potential water quality problems for those areas that contribute flow to the East Fork of the Manatee River," as Class I waters. Dr. Durbin reasonably explained that after mining and reclamation, the existing wetlands will be severed from the Manatee River because the agricultural ditching will be removed, which leads to the reasonable conclusion that the replaced wetlands will not have a surface water discharge into other wetlands which are ultimately tributaries to the East Fork of the Manatee River. Thus, the wetlands will not flow to surface waters that then enter Class I waters. Further, there are no expected measurable decreases in depth of flow to the Manatee and Myakka Rivers resulting from mining and reclamation activity on the Property, which might reasonably be expected to adversely impact the water quality of these rivers. There are no measurable impacts to any Outstanding Florida Waters (OFW)(no OFWs are located on the Property), including aquatic preserves, or to Class I or II waters, which are likely to result from this project. See Findings of Fact 193-195. The ditch and berm system around active mining and reclamation areas will preclude the direct release of waters impacted by mining to surface water bodies on the Property. The system is designed to isolate the unmined areas from surface water runoff that may be present in the mine area and to maintain water levels in undisturbed wetlands. See Findings of Fact 31-42. Waters collected in the ditch and berm system will be reused and recycled by IMC in the mining operations. Some portion of that water will be discharged through permitted discharge outfalls not located on the Property in accordance with IMC's currently valid Department NPDES Permit. Such discharges must comply with discharge water quality criteria set forth in the NPDES Permit. Permitted water discharges from these outfalls is necessary because IMC will need the ability to release water from the mine into nearby waters and streams. The activities on the Property are regulated pursuant to the Fort Green Mine NPDES Permit, and, in particular, outfalls 3 and 4 which discharge water into Horse Creek. (Outfalls number 1 and 2 discharge water into Payne Creek.) Over the past 5 years, in measuring the water quality of the water leaving the permitted outfalls, IMC is unaware of any violations of permit limits, including surface water quality standards at the Fort Green Mine site based on samples taken at the outfalls. In the event there is a concern regarding water quality at an outfall, a gate constructed at the outfall can be quickly closed to stop off-site flows. Water quality data from Payne Creek, where over two- thirds of the watershed has been mined and a good portion reclaimed, demonstrate that phosphate mining has not adversely impacted dissolved oxygen (DO) levels in the receiving stream, i.e., the concentrations are comparable to other streams. Payne Creek has had lower nitrogen concentrations in most years than other measured streams, such as Joshua Creek, which has had no mining. Water used to recharge the ditch and berm system and maintain groundwater levels will be of high quality and is not expected to cause or contribute to adverse water quality impacts should they reach area surface waters as a part of base flow. The predicted reductions in stream flow, either during active mining and reclamation or after reclamation is complete, are not expected to have an adverse impact on the water quality of surface waters flowing through the Property or at any point downstream. Freshwater flows have a major role in determining the salinity in an estuary. The small reduction in fresh water flow during high-flow conditions predicted during mining and after reclamation of the Property is not expected to cause adverse impacts to salinity levels in the Charlotte Harbor Estuary. The small predicted impact is of insufficient magnitude to be measurable and, therefore, to warrant a reasonable concern. During active mining and reclamation activities at the Property, off-site drainage entering the Property will be unaffected by mining operations. Augmented base flow will be of high quality and runoff from undisturbed areas that reach surface waters on the Property will be the same as prior to the time mining commenced. Evidence presented at the final hearing demonstrated that, once mining and reclamation activities have been completed and the West Fork of Horse Creek has been reclaimed, surface water bodies on the Property or downstream in the Horse Creek and Myakka River are expected to achieve all applicable Class III surface water quality criteria. The proposed mining and reclamation activities at the Property are not expected to cause or contribute to a violation of Class I standards in the Manatee River. Charlotte County's expert witness, Dr. Janicki, opined that the proposed mining and reclamation project will not cause a violation of any currently applicable numerical water quality standards. Water quality sampling at the Property indicates that DO levels lower than the Class III standards currently occur in the West Fork of Horse Creek and in wetland systems at the Property. This is not an uncommon occurrence in natural systems. The DO levels in reclaimed wetlands at the Property will essentially mimic conditions in naturally occurring wetlands, and it is not anticipated that DO levels in the reclaimed wetlands will be depressed any more than occurs in a natural system. With regard to the reclaimed West Fork of Horse Creek, the reclaimed stream will be at least equivalent to the current ditched segment with regard to DO levels, and it is likely that DO levels will be improved overall since the design of the system will provide for a meandering channel and for the placement of logs or other obstructions in the channel which should increase aeration and thus potentially elevate DO. Opponents' expert Dr. Dunn agreed the existing water quality in the West Fork of Horse Creek is not as good as it is in the main channel of Horse Creek. Water quality monitoring carried out by IMC on reclaimed areas demonstrates that water leaving the reclaimed areas and entering surface water bodies meets applicable water quality standards. IMC will be required to monitor the quality of water in the reclaimed wetlands areas on the Property and will not be authorized by the Department to connect the reclaimed areas to the surface water system unless monitoring data demonstrate that water quality criteria are met. Under IMC's ERP Application, prior to any reclaimed wetland being reconnected to the off-site surface waters, there is one full year of water quality sampling required in order to demonstrate that water quality standards are met before the wetland is connected to the natural system, which is an extra safeguard not required in non-mining ERP applications. Moreover, there is credible evidence in the record of IMC's historical and successful use of AFWs and their effect on water quality. A study done by the Department in 1994 stated that the water quality indicators in an operational AFW were better than those same indicators at a natural site that did not have alternate flow-way characteristics. The weight of the evidence indicated that the water quality and biological integrity of the AFW will be in full compliance with the permitting requirements and with the state water quality standards. The weight of the evidence in the record does not indicate that the mining and restoration of the West Fork of Horse Creek will result in violations of water quality standards, as the water quality leaving the site during mining and after reclamation will be similar to the water quality that currently exists on-site. There are several reasons why water quality will not be adversely impacted: (1) a substantial portion of the watershed for the West Fork of Horse Creek lies north of the Property, and the water coming from this area will still move through the Property into the preserve area and off- site; (2) IMC will use best management practice berms to keep any runoff from active mine areas or cleared areas from entering the wetlands and streams associated with the flow way over the reclaimed wetlands precluding degradation of the water quality from those areas; and (3) IMC will use clean water in the recharge ditch system which will be seeping into the surrounding wetlands and the stream that is essentially feeding the wetlands with clean water augmenting the flow downstream. Groundwater Groundwater quality monitoring in the vicinity of the phosphate mining operations has demonstrated that such operations will not adversely impact the quality of groundwater in the vertical aquifer adjacent to mining operations or in the deeper intermediate or Florida aquifer systems. Impacts to Wetlands and Other Surface Waters Functions Provided to Fish and Wildlife Pursuant to Rule 40D-4.301(1)(d), Florida Administrative Code, an ERP applicant must provide reasonable assurance that its proposed activities will not adversely affect the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface water, and other water-related resources of SWFWMD. Prior to mining, pedestrian-type surveys of the Property will be conducted of the Property to determine the listed wildlife in order to avoid impacting particular species. Some species, including gopher tortoises, would be relocated to an unmined area. The weight of the evidence shows that IMC will minimize impacts to fish and wildlife through (a) a Conservation Easement, which preserves those areas with an abundance of habitat diversity, (b) through best management practice berms, which protect water quality of adjacent systems, and (c) through the AFW, which will allow continuous movement of fish and wildlife from areas north and south of the Property as well as creation of additional habitats. IMC's efforts to avoid and minimize the potential for impacts to fish and wildlife during mining and reclamation satisfy permitting rule requirements. Fish and wildlife functions in areas to be mined or disturbed at the Manson Jenkins Project will be temporarily impacted. The areas to be impacted typically are of lower ecological value while IMC has agreed to preserve a substantial amount of the higher quality wetlands on the Property together with, in some cases, important adjacent upland habitats. The impacts that do occur will be mitigated by the replacement of the impacted systems by more and higher quality systems than existed prior to mining. This includes the enhancement of the project with the wildlife corridor through the middle of the Property and improvements to the stream system. The Conservation Easement can be expected to protect the "habitat mosaic of the corridor." (The Conservation Easement on the Property includes approximately 521 acres.) Credible evidence also shows that IMC will satisfy permitting rule requirements after mining. Under the reclamation plan there will be diverse, connected habitats instead of the existing pre-mining single ditch and, primarily, agricultural land cover. There is also empirical data in the record concerning reclamation indicating that reclaimed areas were equal to or better for fish and invertebrate use when compared to natural systems, and similar results are also expected for IMC's reclamation. Both state and federal agencies approved the work plan of IMC used to survey wildlife at the Property. IMC's wildlife surveys are reasonable, which enabled the preparation of a comprehensive wildlife management plan. Avoidance and Mitigation Avoidance Phosphate ore underlies the land surface beneath waters and wetlands. Thus, it is not possible to avoid disturbance of these systems and still mine the valuable resource. See generally Section 378.201, Florida Statutes. IMC and the Department evaluated the quality of the waters and wetlands proposed for disturbance at the Property as part of the permit application process. Most of the wetlands systems deemed to be of higher quality through the application of the WRAP (Wetland Rapid Assessment Procedure) analysis are being preserved. (The WRAP Procedure is an accepted procedure to evaluate wetland functions and assign a value based on several criteria. The first WRAP was developed by South Florida Water Management District. WRAP scores generally are numerical values that can be assigned on a per-unit-acre basis to wetlands that are an index of their functional value.) For all areas that are not avoided, IMC is required to take steps as part of its land reclamation process to mitigate the unavoidable impacts associated with mining the Property. It was suggested that IMC did not avoid impacts due to IMC's determination to mine approximately 17 acres of wetlands in the Manatee River Basin. This suggestion is not persuasive because over 316 acres of wetlands will be left unmined on the entire Property, which equates to approximately 45 percent of the wetlands on the Property, including over 70 percent of the forested wetlands on the Property. The weight of the evidence shows that IMC was prudent in balancing between avoidance of appropriate environmentally significant areas, such as some wetland systems, and the operational needs to reach the phosphate matrix that is underlying the Property. Also, approximately 3.7 tons of phosphate rock reserves underlie the preserved areas with a projected loss of total income of over $55 million. 2. Mitigation In the ERP Program, the term "mitigation ratio" refers to the wetlands or other surface waters and areas the applicant is proposing to, for example, create, restore, enhance, donate in kind, or preserve, versus the impacted wetlands. For example, a mitigation ratio of two to one means the applicant is proposing to mitigate or recreate two acres of wetlands for every acre that is being disturbed or impacted. Section 373.414(6)(b), Florida Statutes, provides that wetlands reclamation activities for, in part, phosphate mining undertaken "pursuant to chapter 378 shall be considered appropriate mitigation for [Part IV of Chapter 373] if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities." See also Section 3.3.1.6., Basis of Review. Mining, reclamation, and revegetation on the Property is expected to be completed within 15 years, including reclamation of the CSAs. The conceptual reclamation plan, which includes the Property, was approved by Department final agency action on March 20, 2001, pursuant to Chapter 378, Part III, Florida Statutes, and Chapter 62C-16, Florida Administrative Code. However, this approval does not mean that IMC is not required to prove reasonable assurances regarding its mitigation plan, which is discussed herein. Rule 62C-16.0051(4), Florida Administrative Code, requires the restoration of impacted wetlands on at least an acre-for-acre and type-for-type basis. Compliance with this provision is mandatory for phosphate mines. IMC's mitigation plan satisfies this acre-for-acre, type-for-type mitigation requirement. In addition to satisfying the mitigation guidelines contained in the permitting requirements, other factors such as (a) the low quality of the wetlands that are being disturbed due to historical ditching and draining to accommodate historical agricultural land uses, (b) the significant on-site preservation effort, and (c) the Integrated Habitat Network (IHN) that provides a regional benefit to wildlife and their habitats and to water quality and which represents mitigation beyond applicable requirements, all taken together demonstrate the appropriateness of IMC's mitigation plan. The total cost to IMC for wetlands mitigation at the Property is approximately $3.6 million. The number of acres of wetlands affected by the Manson Jenkins activities in the Myakka, Manatee, and Peace River Basins total approximately 361 acres. See Findings of Fact 76-77 and 95-96. IMC will reclaim 538 acres of wetlands as mitigation for the 361 acres of generally low quality wetlands that will be disturbed at the Property. The reclamation area wetlands will be designed to provide a diversity of habitat and function that does not presently exist at the Property. IMC's reclamation plan adequately mitigates for any impacts by creating approximately 538 total wetland acres distributed among these three basins. Additionally, those wetlands that are created will have associated upland buffers, which the existing wetlands do not, and these newly created buffers will provide additional, enhanced wildlife and water quality benefits at each created wetland. In the reclaimed landscape, a forested buffer is expected which will provide some wildlife and water quality benefits to each wetland. The created wetlands will be hydrated by the groundwater outflow from the recharge system. IMC has had experience in the reclamation of wetland systems in Florida. Since 1975, IMC and its predecessor company, Agrico Chemical Company, have reclaimed approximately 6,850 acres of wetlands. Biologists and reclamation experts Dr. Durbin and Dr. Clewell presented persuasive evidence that IMC is capable of successfully completing the proposed reclamation activity and that the ultimately reclaimed wetlands systems will restore long-term ecological value to the Property and adjacent areas. Nevertheless, restoration and reclamation of wetlands is not a perfect science; mistakes have been made, e.g., Dog Leg Branch, and are documented in this record. To his credit, Dr. Clewell agreed. However, several studies, including Charlotte Exhibits 29 and 31 and others, do not persuasively indicate that IMC's proposed reclamation and restoration proposal for the Manson Jenkins Project will not be successful or that IMC does not have the wherewithal and overall professional expertise to accomplish the desired result. The weight of the evidence demonstrates that IMC can effectively carry out the proposed reclamation plan as set forth in the ERP and that, with regard to waters and wetlands impacted by mining operations at the Property, it will effectively mitigate the unavoidable ecological losses associated with mining those areas. The ERP contains detailed success criteria for the required wetlands reclamation. Extensive monitoring is required and Department personnel carry out regular inspections of reclamation sites. Only after reclamation success criteria are achieved, including attainment of necessary water quality criteria, will the reclaimed wetlands be approved by the Department and reconnected to the natural system. Stated differently, the project will only be deemed to be officially successful after release by the Department. This does not mean, however, that reclaimed wetlands, including wetlands reclaimed by IMC, have not been or are not functional before release. This includes the Big Marsh. (It appears that the existence of nuisance species currently precludes the release of Big Marsh. Dr. Clewell advised that Big Marsh is very close to meeting all criteria for release right now. See Findings of Fact 231 and 265.) 3. Acre-for-Acre/Type-for-Type As noted above, Chapter 378, Florida Statutes, contains an acre-for-acre, type-for-type mitigation strategy for phosphate mining reclamation, and IMC's reclamation plan exceeds the one-to-one mitigation ratio contained in the mine reclamation rules of Chapter 378, Florida Statutes. Substantial evidence in the record exists to support the claim that the ecological value of the wetlands proposed to be reclaimed will be higher than the current ecological value of the wetlands that will be disturbed and are currently existing at the Property. There are two types of reclamation: herbaceous and forested reclamation. IMC has reclamation experience, and based on IMC's experts' evaluation of many reclaimed sites, the average WRAP value assigned to herbaceous systems is .64 and for forested systems is .73. The wetlands proposed to be disturbed at the Property have an average pre-mining score for herbaceous systems of .54 and for forested systems of .51. Once reclamation occurs, the reclaimed herbaceous systems at the Property will score 1.19 times the existing the value, or an approximate 20 percent improvement from the existing wetland systems at the Property. Significant ecological improvement is also evidenced for the Property's reclaimed forested wetlands that will have an improved value of approximately 43 percent. The evidence shows IMC used the WRAP procedure to value wetlands and the functions wetlands provide to fish and wildlife as well as the accompanying water quality and quantity issues at the Property. WRAP was used for the Manson Jenkins Project because it was required by similar permitting under the Clean Water Act for the United States Army Corps of Engineers. The Department participated in the evaluation of the methodology used, including auditing the results in the field and on paper. But the Department did not accept or reject the methodology per se. On the other hand, the "King Formula" used by permit opponents' expert Dr. Dunn to critique IMC's reclamation proposal is a "completely different approach" from the regulatory requirement of acre-for-acre, type-for-type that is applicable to this ERP application. Further, the "King Formula" has not been accepted by the Department as an appropriate methodology for ERP evaluations, nor has Dr. Dunn ever before relied on the "King Formula" to support any ERP permit that he assisted in obtaining. There is credible evidence that even if the permit opponents' mitigation calculation (or "King's Formula") is applied, IMC would need 1.15 to 1 replacement for herbaceous systems and 1.27 to 1 replacement for forested systems. The record reflects IMC is required under the proposed ERP permit to have 1.38 to 1 replacement for herbaceous systems and 2.28 to 1 replacement for forested systems. Thus, IMC is committed to a more functionally equivalent mitigation objective than is calculated using the opponents' method for evaluating mitigation ratios. 4. Restoration of the West Fork of Horse Creek and Headwater Marsh The record shows that IMC has a successful history of restoration generally and, specifically, reclaiming headwater marshes as part of their overall mitigation experience. IMC's reclamation efforts have been recognized with both state and federal awards. Two examples of reclamation projects which appear to be functionally successful, although not yet released by the Department, are Big Marsh, which is a 229-acre headwater marsh flowing into Horse Creek, and the approximately 200-acre, P-20 Marsh, which is a headwater of Horse Creek, and next to Big Marsh. Both Big Marsh and P-20 Marsh show comparable features, placement, and functions when compared to their pre-mining condition and their current post-reclamation condition. The restoration efforts at the P-20 Marsh are relevant because it is similar to the Property in that it too was cleared of vegetation and ditched. Testimony shows that the benthic macroinvertebrate organisms, which are important to the successful functioning of a headwater marsh, are reasonably expected to be recolonized in the reclaimed system at the Property in a variety of permit- required habitats, which habitats are ecologically better than the existing habitat conditions on the Property. Further, the benthic invertebrate populations existing in the area north of the Property will be connected to the reclaimed Property enabling recolonization of the reclaimed marsh. IMC presented credible evidence that the excavated portions of the West Fork of Horse Creek will have ongoing, functional value and the reclaimed headwater marsh and stream system will at least maintain, but likely improve the water quality and function of the excavated portions of the West Fork of Horse Creek. IMC's reclamation plan is to recreate West Fork of Horse Creek to more resemble a natural Florida stream with a meandering flow-away with trees that shade the stream and provide improved habitats for fish and wildlife. Moreover, the existing West Fork of Horse Creek, though properly identified as a "first order stream," is a very small system with intermittent flow. The stream ordering system is a method of classifying the size of streams in terms of watershed basins and sub-basins. A "first order stream" is the smallest of the set of streams making up an entire drainage basin and is more a landscape or hydrologic indicator and does not necessarily indicate a stream's ecological value. The West Fork of Horse Creek is not a regionally- significant stream because the existing conditions at the West Fork of Horse Creek are degraded as a result of agricultural ditching, the ecologically poor uplands surrounding the area, and the overall presence of agricultural land. More specifically, the area proposed for mining in the West Fork of Horse Creek is of "very low ecological value, relative to what another first-order or headwater system might be." 5. Temporal Lag It has been asserted that there will be some temporal lag of ecological function at the Property because certain reclaimed systems will take some time to become mature. (Temporal lag is the phrase given to a lag time between the impact to a wetland system and the replacement of the functions once offered by the wetland system. Chapter 62C, Florida Administrative Code, does not require consideration of temporal lag in determining reclamation requirements. The weight of the evidence presented, however, shows that more acres of wetlands will be reclaimed than are being disturbed and the reclaimed systems will be of higher ecological value than the stressed systems proposed for mining. Furthermore, the evidence at hearing demonstrated that the total amount of wetland acreage at the Property is not significantly reduced. Also, fairly early in the mining and reclamation sequence, the total number of wetland acres on the Property are reasonably expected to exceed pre-mining conditions. Even using the worst-case scenario as proposed by opponents to the permit application with longer temporal lag (6 years instead of 3 years for herbaceous systems and 40 years instead of 20 years for forested systems), the resulting calculated required herbaceous system ratio of 1.21 to 1 is still less than the permit's requirement of 1.38 to 1. Similarly, the forested system's worst-case calculated ratio using permit opponents' unwarranted temporal lag assumptions is 1.74 to 1, which is still less than the 2.28 to 1 permit requirement. Further, the evidence shows that doubling the time between the removal of the systems and mitigation, from 4 to 8 years, results in a herbaceous ratio of 1.39 to 1 and a forested ratio of 2.04 to 1, which indicates that even if the time between impacts and mitigation were doubled, IMC's reclamation plan would still be adequately mitigating for any impacts. 6. Iron and Manganese IMC's expert explained the scientific research performed on behalf of the Florida Institute of Phosphate Research involving 11 phosphate mines and more than 40 exploratory wells and borings to evaluate the water quality of mined lands. There were no exceedances of standards with the exception of iron and manganese, which were expected to exceed standards because Florida has high background concentrations of iron manganese oxide in the soil. There is no reason to believe Manson Jenkins’ activities will cause adverse impacts to wetlands due to "groundwater perturbations." 7. "Flocculation" (Iron Bacteria) There is credible evidence that iron bacteria is a naturally-occurring substance and is common in Florida soils. Dr. Durbin testified that iron bacteria is not a reasonable concern for the Manson Jenkins Project. A benefit provided by the proposed reclaimed streams, wetlands, and lakes is that these are natural treatment systems that, in the case of iron bacteria, will remove iron from the water and will not cause any off-site concerns. Secondary Impacts 1. General Rule 40D-4.301(1)(f), Florida Administrative Code, requires an applicant to provide reasonable assurance that the project will not cause adverse secondary impacts to the water resources. IMC presented credible evidence that the proposed mining and reclamation activities at the Project will not cause any adverse secondary impacts to the water resources. 2. Stability of CSA's and Associated Dams Mr. Partney, the Department's dam safety engineer, has been involved with the state of Florida's current dam safety program since its inception approximately six years ago, and has been in charge of the dam safety program since its inception. He testified that no inundation studies are necessary for the clay-settling ponds and their associated dams in this project because these are not high hazard dams. The record does not support permit opponents' statement that the proposed Manson Jenkins CSAs are considered high hazard dams. As a result, inundation studies are not required to be performed to determine the risk and consequences of a discharge. The Department's dam safety program rules are contained in Rule 62-672, Florida Administrative Code, and regulate the construction of the dams surrounding CSAs by specifically requiring soil testing, cross-section design work, and stability analysis, among other design safety factors that incorporate engineering practices employed by the United States Army Corps of Engineers under their dam construction rules. The dam failures that have occurred in the past were dams constructed prior to the implementation of this rule except for one, IMC's Hopewell Mine dam. This dam failure was investigated by a "blue ribbon panel," including Mr. Partney. The cause of the failure was determined, and the problem with that failure corrected in the current version of the rule. The weight of the evidence also supports IMC's commitment to dam safety as evidenced by IMC's response to this dam failure. IMC voluntarily agreed to remove all pre-rule, non-engineered dams from operations, and within one and a-half years, IMC had categorized, inventoried, and taken out of service all non-engineered structures. Also, IMC has a Site Preparedness Plan, otherwise called an emergency plan, that prescribes actions should the signs of a potential failure be detected. Weekly inspections are required and documented. The testimony of permit opponents' expert Dr. Dunn supports the fact that the probability of a failure of a CSA and its associated dam is low. Mr. Partney shares this view, i.e., CSAs are "extremely safe" and there is about a "one in two million chance or so of one of them failing." 3. Authority's Withdrawals from the Peace River The weight of the evidence indicates that the Manson Jenkins Project will not adversely affect the Authority's permitted limits on the withdrawal of water from the Peace River because the activities at the Property will not physically affect the flow of the Peace River, upstream of its confluence with Horse Creek at the Arcadia gauge station, which is the station that determines the Authority's permitted allowance to withdraw water. IMC's expert in environmental hydrodynamics and estuarine physics, credibly testified that the slight potential reduction in freshwater flow due to Manson Jenkins’ activities has little or no potential to negatively impact salinity concerns in downstream water bodies. 4. Ditch and Berm Protection of Wetlands There was credible testimony that the ditch and berm system is a best management practice to ensure the protection of the hydrologic systems adjoining the Property. See Findings of Fact 31-42. IMC's expert, Dr. Garlanger, is one of the co-authors of the criteria used by IMC to engineer these BMPs ditch and berm systems, and the weight of the evidence indicates that the proposed ditch and berm system will protect the water quality of the surrounding wetlands systems as well as maintain the hydrologic regime of the off-site systems. Minimum Flows and Levels Pursuant to Rule 40D-4.301(1)(g), Florida Administrative Code, an ERP applicant must provide reasonable assurance that its proposed activities will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes. This subsection references minimum flows and levels. The Department has not established minimum flows and levels. The water management districts establish minimum levels for aquifers and surface waters and minimum flows for surface water courses pursuant to Section 373.042, Florida Statutes. The Department is "very involved with the districts in developing those minimum flows and levels as part of [the Department's] supervisory authority." In the case of ERP applications filed with the Department for facilities located within SWFWMD's jurisdiction, it is the minimum flows and levels established by SWFWMD that are protected from adverse impact pursuant to Subsection 40D-4.301(1)(g). However, the weight of the evidence, especially the testimony of Department witnesses, indicates that minimum flow and levels adopted pursuant to Section 373.042, Florida Statutes, must be established by rule, and not a permit condition that only applies to one permittee, such as the Authority. SWFWMD has not established, by rule, a minimum flow or level pursuant to Section 373.042, Florida Statutes, for any water body impacted or potentially impacted by the proposed mining or reclamation at the Property, including the Peace River. The proposed mining and reclamation activity, therefore, will not adversely impact the maintenance of any minimum flows and levels established by law. Works of the District Rule 40D-4.301(1)(h), Florida Administrative Code, provides that reasonable assurance be given that a project will not cause adverse impacts to a work of the district, here SWFWMD, established pursuant to Section 373.086, Florida Statues. The weight of the evidence indicates there will be no adverse impact to any surface water body on or downstream of the Property either from a water quality standpoint or from a water quantity standpoint. Accordingly, there will be no adverse impacts to a "work of the district" established pursuant to Section 373.086, Florida Statutes. See also Finding of Fact 72. This proceeding is to determine IMC's entitlement to an ERP, not a "work of the district" permit. It has been the practice of the Department, that if an ERP is issued by the Department, the permittee does not need to also obtain a separate "work of the district" permit. However, SWFWMD's "work of the district" rule has not been adopted by the Department. Effective Performance and Function Engineering and Scientific Capability The mining and reclamation activities proposed for the Property are capable, based upon generally acceptable scientific principals, of being effectively performed and functioning as proposed, including the AFW, ditch and berm systems, the reclaimed wetland areas, and the reclaimed West Fork of Horse Creek Stream Channel. See Rule 40D-4.301(1)(i), Florida Administrative Code. Financial, Legal and Administrative Capability IMC has all necessary legal property rights to mine and reclaim the Property as lessee under a mining lease issued by the Property owners. IMC has demonstrated by the weight of the evidence that it is an entity with financial, legal and administrative capability of ensuring that the activities proposed at the Property will be undertaken in accordance with the terms and conditions of the ultimately issued ERP, including the additional agreed permit condition referenced below. See Rule 40D-4.301(1)(j), Florida Administrative Code. IMC is a large business with assets in excess of $1.6 billion. IMC also presented credible evidence that it has provided Manatee County with a reclamation bond in the amount of $17 million to cover all reclamation liability existing in Manatee County at that time, including the upcoming year that IMC plans to mine. IMC has agreed to provide Manatee County with a general surety bond of $1 million and an environmental risk insurance policy in the amount of $10 million. At hearing, the Department requested and IMC agreed to have the following permit condition added to the ERP upon issuance: At least thirty (30) days prior to the initiation of mining operations, the final version of the financial responsibility mechanism required by Section 3.3.7.6 of the Basis of Review shall be provided to and approved by the Department as required by Rule 40D-4.301(1)(j), Florida Administrative Code (October 1995) and Rule 62-330.200(3), Florida Administrative Code. After reclamation of the Property, IMC has in place a Conservation Easement that places restrictions, such as requiring all regulatory approvals to be obtained, and imposes required management practices in the event that agricultural operations are initiated by a third party. Credible evidence in the record supports IMC's historical efforts in reclaiming wetland systems such as Big Marsh despite suggestions that IMC has not demonstrated the capability to restore marsh systems because, e.g., Big Marsh has not been "released" by the Department. Although this system has not been "released," this system is ecologically valuable. See Findings of Fact 225 and 231. Public Interest Test Several statutory and rule criteria must be considered and balanced to determine whether IMC's proposed activity's on the Property are not contrary to the public interest. See Section 373.414(1), Florida Statutes; Rule 40D- 4.302(1)(a)1-5, and 7, Florida Administrative Code. Public Health Safety or Welfare or the Property of Others As noted elsewhere in this Recommended Order, the proposed project will not cause adverse water quality, water quantity or flooding on the Property or at any point off the Property. The mining and reclamation activities will be carried out within private property subject to security and control by IMC. The CSAs proposed to be constructed at the Property will be designed and constructed in accordance with strict regulatory requirements. A separate Department permit must be applied for and issued before construction of a CSA may commence. The weight of the evidence indicates that the chance of failure of any dam designed and constructed in accordance with current rule provisions is remote, e.g., one in two million according to Mr. Partney. See Findings of Fact 50-57, 161-165, and 244-247. 2. Conservation of Fish and Wildlife The proposed activity at the Property will not cause adverse impacts to natural systems that are not directly subject to disturbance. The ditch and berm system will protect adjacent areas from direct surface water impacts and will maintain groundwater conditions so that preserved wetland systems will continue to function during mining activities. The mining activities will be conducted in a sequence designed to minimize impacts on mobile wildlife species. By mining in the area farthest away from the preserved wetlands in the south and moving in that direction, these wildlife will be able to relocate into the preserved areas. During active mining operations, the mining areas provide value to wildlife. Many bird species use CSAs and active mine cuts during mine activities. Other animals, including raccoons, deer, possums, armadillos, snakes, and frogs use the mine areas while mining is being conducted. IMC has surveyed the Property to identify plant and animal species present at the site and developed a wildlife management plan which was included as part of the application with the ERP. This plan addresses potentially listed threatened or endangered species that could be found on the Property now or in the future and prescribes measures for protecting those listed species. The wildlife management plan comports with good scientific practice. The proposed reclamation will enhance conservation of fish and wildlife values over that currently present at the Property. Currently the site contains several small wetland systems spread out over the site connected by ditches. These wetlands are generally surrounded by pasture. The proposed reclamation plan will consolidate the wetlands into a larger contiguous mass along the West Fork of Horse Creek and will provide for an adjacent upland corridor. The upland corridor will provide additional habitats for species that may use it as a transitional zone between a wetland and an upland. IMC's voluntary establishment of a Conservation Easement over the preserved wetlands in the south portion of the Property and the reclaimed wetland system within and adjacent to the West Fork of Horse Creek in the north provide reasonable assurance that the fish and wildlife values inherent in these areas will be protected. (The Conservation Easement covers approximately 521 acres of wetlands on-site.) In addition, this system upon completion will act as a wildlife corridor of approximately 2.5 miles in length along the West Fork of Horse Creek and will connect to a larger network of habitat corridors known as the IHN. See Finding of Fact 216. IHN is a regional conceptual plan developed by the Department in 1992 for the entire Southern Phosphate District of Florida (1.3 million acres in Polk, Hardee, Hillsborough, Manatee, and DeSoto Counties) and is intended to link existing wildlife habitats, thereby allowing wildlife populations the ability to travel throughout reclaimed areas and publicly owned lands. 3. Navigation, Flow or Harmful Erosion or Shoaling The West Fork of Horse Creek on the Property is not a navigable waterway. The AFW will be vegetated before it is put into operation. It is specifically designed to handle high flow stream events, including the 100-year flood event, and will not erode or cause downstream erosion. Any sharp bends in the AFW way will be stabilized prior to use. The reclaimed West Fork of Horse Creek will be reclaimed as a natural system and will be able to manage high flows without experiencing erosion in the reclaimed stream channel or causing erosion downstream. 4. Fishing, Recreational Values or Marine Productivity The Property is privately owned and does not support public recreation or fishing activities. Following completion of mining reclamation activities, fish and wildlife values in the reclaimed wetlands and waters will be enhanced. 5. Temporary or Permanent Nature Phosphate mining, by its very nature, strips and deprives the land of existing resources, and its effects cannot be underestimated. Dr. Dunn characterizes phosphate mining as destroying the land. Nevertheless, phosphate mining is considered a temporary disturbance of the land, see Section 378.201, Florida Statutes, when compared to other types of activities. Unlike other types of activities, such as commercial or residential development, mining is completed within a finite period of time, and land reclamation follows thereafter resulting in the return of the land to other valuable land forms. 6. Current Conditions and Relative Value of Functions Performed by Affected Areas The proposed activity on the Property will not have an adverse effect on the condition and relative value of functions currently being performed at the Property in areas that will not be disturbed by mining. The areas to be disturbed by mining reflect man-induced changes over the years and provide relatively limited ecological value on the whole. Cumulative Impacts General The Department's method for evaluating the potential impacts from individual ERPs satisfies regulatory consideration of cumulative impacts of a project because so long as phosphate mines mitigate in the same drainage basin as the impacts of the proposed activity and meet the statutory and rule requirements, there will be no cumulative impacts. See Section 373.414(8)(b), Florida Statutes. The Department's evaluation includes the conceptual reclamation plan, which is mandated by Chapter 378, Florida Statutes, that describes the complete mining plan and activities for a site as well as the site's reclamation plans and the Integrated Habitat Network plan. Further, the Department's policy of analyzing similar projects (in the case of IMC's permit application that means other phosphate mines) is reasonable because phosphate mining is a temporary activity that reclaims the land to an enhanced natural system. Other types of development, such as residential and industrial, are not temporary in nature. Additionally, the Manson Jenkins Project received regional review and approval as part of IMC's Development of Regional Impact process from the Tampa Bay Regional Planning Council, which distributed information concerning the Manson Jenkins Project to the Central Florida Regional Planning Council and Manatee County. The weight of the evidence indicates that there will be no adverse water quality impacts on undisturbed areas at the Property or at any downstream location. There are no adverse water quantity impacts on or off the Property. Implementation of the reclamation plan approved by the Department pursuant to Chapter 378, Florida Statutes, and the mitigation which will be provided, as proven in this proceeding, will maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities and thus constitute appropriate mitigation. Such mitigation will occur on the Property and will be in the same drainage basins where the activities are proposed. 2. IMC's Cumulative Impact Calculations Although the Department does not require the type of cumulative impact analysis permit opponents suggest is needed, Dr. Garlanger testified that IMC performed an analysis on the Horse Creek Watershed Basin involving the existing Ft. Green and Four Corners Mines and the future Ona Mine. IMC assessed the impact of past, current, and future mining activities in the Peace River Basin on the flow in the Peace River Basin and on Horse Creek on a cumulative basis. The predictive cumulative impact assessment modeling performed by Dr. Garlanger analyzed the future long-term potential impacts on stream flow by determining the capture during previous mining activities as a baseline period and the resulting impact from the reclamation activities for that baseline. This was then compared with the potential decreases in runoff due to the capture in the areas that are planned to be mined and reclaimed in the future. The cumulative impact analysis performed by IMC made a predictive assessment through the year 2020, which includes mining at the Property as well as mining proposed for three new mines (Ona Mine, Pine Level Mine, and Farmland-Hydro Hardee County Mine) that are in the Horse Creek Basin and existing mines that would be mining at times up to the year 2020. In order to ensure a worst-case prediction, Dr. Garlanger in his analysis assumed that all the direct surface runoff from all of the mining areas would be captured within the mine recirculation systems and consumed in the process and not available to contribute to stream flow in the area. The analysis then assumed that to the extent an area was captured, it would reduce stream flow by that amount in the areas that normally would have flowed to the natural surface water systems. A cumulative impact analysis performed by IMC concluded that for approximately 70 to 80 percent of the time there is essentially no impact on the flow in Horse Creek. Further, reduction in flow during high-flow periods, which is approximately 10 percent of the time, would reduce the flow depth from 7.46 feet to approximately 7.18 feet or less than .3 of a foot and for one percent of the time the reduction in the flow would be from 12.8 to 12.6 feet. These are the predicted impacts if all the potential capture for Horse Creek occurred. The changes in the depths of these waters, during high-flow periods, will likely have a positive impact on decreasing the amount of flooding during a high-flow period. During other times there is no adverse impact from decreasing water by just a few inches out of several feet of water. The same type of cumulative analysis was performed for the entire Peace River Basin. The areas mined and the areas reclaimed were determined using the same maximum potential capture and decreased runoff due to reclamation. Calculations were performed as to the potential decreased stream flow in the Peace River above Arcadia and at Charlotte Harbor due to past, current, and future mining activities. Similar to the Horse Creek Basin analysis, Dr. Garlanger used the maximum potential capture and maximum decrease in the stream flow resulting from reclamation and calculated the maximum expected decrease in stream flow in the Peace River Basin above Arcadia and at Charlotte Harbor for both the baseline condition and the future mining period through the year 2020. This analysis determined that for approximately 80 percent of the time there will be no impact on the Peace River. The only impact is a small increase in flows during high-flow periods at the Arcadia station. Similarly, at the point where the Peace River empties into Charlotte Harbor, the differences in stream flow are practically immeasurable and, if anything, there is predicted a slight increase in flow. The flow will increase slightly because the average area that was captured during the baseline period decreases over time, meaning there is less area for rainfall capture within mining recirculation systems. Though the cumulative impact analysis performed by IMC does show a slight reduction in flow in the Horse Creek, the impact will be a decrease in the stream flow depth of less than 3 or 4 inches in water that is already 7.5 feet and 12.8 feet deep, respectively, which few inches will not cause any adverse impact. Further, the analysis showed that for the same rainfall the overall flow in the Peace River at Arcadia and at Charlotte Harbor through the period 2020 will actually be greater than during the past 19-year period. Furthermore, phosphate mining operations do pump water from the Floridan aquifer system to use in their operations. Deep groundwater pumping can contribute to reduced flow in the Peace River, but phosphate mine operators have substantially reduced their withdrawal of deep well groundwater over the last decade, and it is not anticipated that any substantial increase in use will occur in the future. IMC's withdrawals of groundwater for mining activities conducted at the company's mines, including the Property, have been authorized by the issuance of Water Use Permit No. 20114000 by SWFWMD. 3. Flow Impacts There is significant testimony concerning an analysis of the impacts of phosphate mining and reclamation on a watershed. IMC's expert Peter Schreuder performed an analysis involving the Peace River, Alafia, and Withlacoochee River Basins. Phosphate mining activities take place in the Peace River and Alafia River Basins and no phosphate mining activities taken place in the Withlacoochee River Basin. Each of these watersheds has a gauging station (a place where flows are electronically measured on a continual basis going out of a watershed) maintained by the United States Geological Survey. The analysis performed by IMC's expert compared the pattern of flow in watersheds where no phosphate mining was taking place with flow patterns in watersheds where phosphate mining was occurring. IMC's expert gathered data from the farthest downstream gauging station at each of these three watersheds; the data dated back to nearly 1935. This data provided actual measured flow data, with rainfall as the driving variable. The purpose of the analysis was to determine if phosphate mining was having an influence on flow. It is alleged that phosphate mining reduces flow. If the allegation is correct, the trend would be downward because less flow in the river would be expected. However, the weight of the evidence showed that under normal flow conditions, mined basins have more flow than unmined basins and in storm events the mined basins moderate the runoff to some minor degree by attenuating runoff and allowing for a slower and later release as beneficial, normal, base flow instead of flood flows. 4. Non-Mining Impacts There is convincing evidence in the record that other types of developments expected in the Peace River Basin, which include commercial and residential development as well as agricultural development, do not have the potential to capture surface runoff to the extent of mining activities. Additionally, residential and commercial development, because they result in lower evaporation due to the abundant impervious areas, result in an increased runoff in the basin. Thus, if these types of developments were included in the impact analysis, there would be an additional increase in runoff. G. Specific Conditions The draft ERP sets forth numerous general and specific conditions. Petitioners and Intervenors question the sufficiency of several specific conditions. In particular, Specific Condition 4.c. requires IMC to collect and report flow data from the AFW, but does not identify a reference stream or indicate what the Department is do with the data and how the data is to be evaluated. Mr. Partney convincingly suggested that these issues should be included in Specific Condition 4.c. On this record, it is difficult to conclusively determine which stream should be used as a reference stream. Pursuant to its special expertise, the Department should consider adding supplemental language to clarify these issues. See generally Reedy Creek Improvement District v. State, Department of Environmental Regulation, 486 So. 2d 642 (Fla. 1st DCA 1986). Specific Condition 12.b.i. requires that "[t]he created replacement stream for the West Fork of Horse Creek shall have a similar hydroperiod to the upper reaches of the preserved area of Horse Creek." Mr. Partney suggested that while "there may be some impacts going on," "they're not as significant in terms of the ratio of the impact to the ratio of the project area at that point. There would be--certain to be significant area of watershed that was not experiencing impacts. And a substantial portion of the Horse Creek in this area is preserved. So there is some assurance at that point that there will be sufficient natural conditions to give [the Department] the data [the Department] needs." Nevertheless, the monitoring of flow patterns is critical to the success of this project. In this light, the Department should endeavor to assure itself that the portion of the Horse Creek to be used for comparison is suitable for the purposes reflected in Specific Condition 12.b.i.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: Petitioners and Intervenors have standing to challenge the issuance of ERP No. FL 0142476-003; IMC provided reasonable assurance that it has the ability to comply with the conditions of draft ERP No. FL 0142476-003; IMC has complied with all conditions for final issuance of draft ERP No. FL 0142476-003; ERP No. FL 0142476-003 be issued with the following additional permit condition: At least thirty (30) days prior to the initiation of mining operations, the final version of the financial responsibility mechanism required by Section 3.3.7.6 of the Basis of Review shall be provided to and approved by the Department as required by Rule 40D-4.301(l)(j), Florida Administrative Code (October 1995), and Rule 62-330.200(3), Florida Administrative Code. DONE AND ENTERED this 8th day of March, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2002. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Aliki Moncrief, Esquire Earthjustice Legal Defense Fund Post Office Box 1329 Tallahassee, Florida 32303 Edward P. de la Parte, Jr., Esquire Vivian Arenas, Esquire De la Parte & Gilbert, P.A. Post Office Box 2350 Tampa, Florida 33601-2350 Martha Y. Burton, Esquire Charlotte County Attorney's Office 18500 Murdock Circle Port Charlotte, Florida 33948-1094 Alan Behrens 4070 Southwest Armadillo Trail Arcadia, Florida 34266 Douglas Manson, Esquire David M. Pearce, Esquire Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606 John R. Thomas, Esquire Thomas & Associates, P.A. 233 3rd Street, North, Suite 302 St. Petersburg, Florida 33701 Thomas L. Wright, Esquire Lee County Attorney's Office 2115 Second Street Post Office Box 398 Ft. Myers, Florida 33902 Alan W. Roddy, Esquire Sarasota County Attorney's Office 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236 Roger W. Sims, Esquire Rory C. Ryan, Esquire Jeff Donner, Esquire Holland & Knight LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 Robert L. Rhodes, Esquire Holland & Knight LLP 2099 Pennsylvania Avenue, Northwest Washington, DC 20006 Susan L. Stephens, Esquire Holland & Knight LLP 315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301 Patricia A. Petruff, Esquire Dye, Deitrich, Prather, Petruff & St. Paul, P.L. 1111 Third Avenue, Suite 300 Bradenton, Florida 34205 Craig D. Varn, Esquire Doreen Jane Irwin, Esquire 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issues in this cause are related to the question of whether Admiral Corporation (Admiral) should be granted a construction and operation permit for a management and storage of surface waters system for the Hammock Dunes, Phase I, development. The agency with permit review responsibility is the St. Johns River Water Management District (District). This hearing is occasioned by the challenge by Petitioners to the notice of intent to grant the subject permit.
Findings Of Fact Part A The following facts are found based upon the prehearing stipulation of facts entered into by the parties: Petitioner Florida Wildlife Federation, Inc., is a non-profit corporation organized under the laws of Florida. Florida Wildlife Federation, Inc.'s, address is Post Office Box 15917, West Palm Beach, Florida 33416. Petitioner Friends of Barrier Islands, Inc., is a non-profit corporation organized under the laws of Florida. Friends of Barrier Islands, Inc.'s, address is Rt. 1, Box 161K, St. Augustine, Florida 32086. Respondent Admiral is a corporation organized under the laws of Florida. Its address is 4 Office Park Drive, Palm Coast, Florida 32037. Respondent District, a special taxing district, created by Chapter 373, Florida Statutes, is charged with the statutory responsibility of the administration and enforcement of permitting programs pursuant to Part IV of Chapter 373, Management and Storage of Surface Waters (MSSW), specifically Sections 373.413 and 373.416, Florida Statutes, and Chapter 40C-4, Florida Administrative Code. Furthermore, pursuant to Section 403.812, Florida Statutes, the District has received a delegation of the powers and duties of the Department of Environmental Regulation pertaining to the administration of Chapter 17-25, Florida Administrative Code, "Regulation of Stormwater Discharge" with power to administer the rule's requirements through implementation of Chapter 40C-42, Florida Administrative Code. The District is the agency affected in this proceeding. The District has assigned Admiral's MSSW permit application which is the subject of this proceeding the permit no. 4-035-0013A. On March 21, 1986, Respondent Admiral submitted to Respondent District an MSSW permit application no. 4-035-0013A to construct and operate a surface water management system to serve a 768 acre development known as Hammock Dunes, Phase I, located in Flagler County, Florida. Hammock Dunes, Phase I, is located on property bounded on the west by State Road A-1-A and on the east by the Atlantic Ocean. The existing Jungle Hut Road marks the majority of the northern boundary of Hammock Dunes, Phase I, and State Road A-1-A marks the majority of the southern boundary. On June 11, 1985, Respondent Admiral received from Respondent District, MSSW permit no 4-035-0001C granting conceptual approval of the surface water management system for the entire 2258 acre Hammock Dunes development, of which Hammock Dunes, Phase 1, is a part. Petitioners received written notice of the District staff's intent to recommend approval of the conceptual approval application and a notice of rights. Petitioners attended the Governing Board meeting at which the application was approved, speaking in opposition to the permit application. Petitioners did not petition for an administrative hearing or seek review of the agency action in any legal forum. On July 25, 1986, District staff gave notice of its intent to recommend approval with conditions of Admiral's MSSW permit application no. 4-035-0013A to construct and operate the surface water management system for Hammock Dunes, Phase I. Petitioners' Petition for Administrative Hearing was timely filed with the District. All surface waters which are proposed to receive surface water discharges from the surface water management system proposed by application no. 4-035-0013A which is the subject of this proceeding are Class III surface waters and are not Outstanding Florida Waters. Hammock Dunes is an approved development of regional impact. The proposed surface water management system for Hammock Dunes, Phase I, is consistent with the plans approved in the conceptual permit issued by the St. Johns River Water Management District. By an amendment to the prehearing stipulation, the parties agree that it is not necessary to consider the implications of the Hammock Dunes development as it might endanger life or property, with the exception of the implications of that development as they affect drinking water quantity and quality. The issues pertaining to drinking water are discussed in subsequent fact finding. Part B The remaining facts are found based upon the record created at hearing, in view of the demeanor of witnesses who testified and based upon suggested facts proposed by the parties. Florida Wildlife Federation, Inc., has statewide membership with approximately 20 members living in the Hammock Dunes area, including several who use shallow wells immediately west of Phase I. The groundwater associated with those wells and in other locales in the vicinity of the proposed project is the source of potable water for commercial and domestic uses by local residents. Some of these individuals use purification treatment devices on the groundwater extracted. Members of the Federation also enjoy the wildlife found in the area. Friends of the Barrier Islands, Inc., has hundreds of members, some of whom own and reside on lands adjacent to the Hammock Dunes tract and who are dependent on area groundwater for their potable water. Some members fish the mosquito control ditches along the boundaries of the tract. Hammock Dunes is a proposed development located on the Atlantic Ocean coast, midway between St. Augustine and Daytona Beach. Hammock Dunes is an approved development of regional impact (DRI). The total project covers over 2200 acres, and approximately 6670 residential units are planned to be constructed over a 20-year build-out period. The residential units will cover approximately 40 per cent of the Hammock Dunes property, with the other 60 per cent being left as open space and public facilities. Approximately 400 acres will be preserved in their natural state, and an additional 500 acres will be converted into golf courses, parks, school sites, and other public amenities. The approval of the Hammock Dunes, Phase I, development, including the approval sought in this proceeding, triggers the dedication by Admiral to Flagler County of 67 acres for oceanfront parks. These recreational facilities will have a capacity for 20,000 peak-day user, and provide parking for over 3,000 cars. In addition, dune walkovers will provide access to the beach while protecting the dunes. Admiral Corporation will also contribute to the cost of constructing a dune driveover. Phase I of Hammock Dunes covers approximately 768 acres on which a little over 1700 residential units will be built. Thirty-seven per cent of the Phase I property will be used for residential land uses, while 63 per cent will be left as open space and other activities, including a preserved hammock, functional wetlands, and a golf course. Based upon this land use mix, the runoff coefficient for the Phase I development will be 0.3. The Hammock Dunes DRI, of which Phase I is a part, includes a bridge over the Intracoastal Waterway to connect the Palm Coast area to the Hammock Dunes area. The bridge and its stormwater runoff management system are not part of Phase I. They have been previously permitted. In the vicinity of the project site, Washington Oaks State Gardens is found. It is a tract of public land located to the north of the northern boundary of the Hammock Dunes DRI project. It uses groundwater as potable water and for irrigation. Private lands are located between the northern boundary of the overall Hammock Dunes and the southern boundary of the public land. Phase I of Hammock Dunes exists in the southern part of the Hammock Dunes. The project in question will cause no adverse effects to the public or private property to the north related to water quality or quantity or otherwise. Hammock Dunes is surrounded by salt waters. It contains several habitat types ranging from beach and dune communities near the ocean to a hardwood forest at the westerly edge of the site. In order to determine the geologic and hydrogeologic characteristics of Phase I (hereinafter referred to as "on site" or "the site"), Admiral conducted a study which included the drilling of eleven shallow wells and two deep wells on site. It also conducted a pump test at the site in furtherance of this inquiry. The well drilling information revealed that medium to fine grain sands exist to a depth of approximately ten feet. Below-this level to an approximate depth of forty feet below land surface are found a series of undifferentiated sand and shell materials. At an approximate depth of forty feet, which constitutes the base of the surficial aquifer, to a depth of approximately fifty feet, there exists a very stiff clay layer known as the Hawthorn formation. This formation acts as a confining unit between the surficial aquifer and the Floridan aquifer which underlies the formation. An outcropping of consolidated material known as the Anastasia formation can be seen on the Atlantic coast beach to the east of the site. This formation does not extend to the western boundary of the site. The pump test performed on the site by Admiral was sufficient to determine the characteristics of the surficial aquifer. The transmissivity of the surficial aquifer, i.e., the ability for the water to move through the aquifer, is approximately 12,500 gallons per day per foot. Expert witnesses in the field of hydrogeology who testified at hearing did not find this value for an aquifer of that type to be other than as expected. A lens of fresh water that is of drinking water quality underlies most of the island. This is related to the surficial aquifer. Rainfall is the only source of replenishment or recharge. As a consequence, the water table fluctuates depending on rainfall patterns and seasonal or climatic cycles and drawdown by the mosquito control district in operating its ditches. Currently on the site there exists a groundwater divide located approximately 2,000 feet east of State Road A-1-A. This groundwater divide runs in a north-south direction. Therefore, the groundwater movement occurs in an east-west direction. In other words, a molecule of water landing on the west side of the divide will percolate into the soil and flow westward toward the Intracoastal Waterway, while water landing on the east of the divide will flow eastward to the Atlantic Ocean. The direction of the flow will remain the same after construction of the system. It will not be possible for a molecule of groundwater anywhere within the proposed Phase I project to migrate to Washington Oaks State Garden because the groundwater flow will not proceed in that direction. The Hammock Dunes, Phase I, surface water management system which Admiral proposes on the site will include 77 acres of excavated lakes interconnected with 11 acres of created freshwater marsh and integration of 19 acres of existing wetlands. After excavation the lakes will directly connect with the groundwater in the surficial aquifer and mix surface waters with the groundwater. This will increase the amount of water exposed and lost to evaporation. The excavations will occur below the water table and penetrate the surficial aquifer. However, on balance, the water management system will increase the amount of water at the site. As stated, the mosquito control ditches currently serve to drain the surficial aquifer of its stored Water. Most of these ditches will be filled; however, one 800 foot ditch in the southeast section of the site will not be filled, and a dredge and fill permit application related to that ditch as previously filed with the Department of Environmental Regulation has been withdrawn. Water control structures will be constructed to control the discharge from the proposed system to surface waters. These water control structures will maintain the water level in the system at or above 4.0 NGVD 77 percent of the time. The minimum water level in the system, even in a dry year, will be 2.7 NGVD. Presently, discharge to adjacent surface waters occurs through existing culverts at invert 1.2 feet NGVD. These culverts are connected internally north/south by the existing mosquito control ditches and this tends to bleed down groundwater in the area to the elevation 1.2 NGVD, thus allowing flow into the receiving surface waters. The entire site is located above the 100-year flood elevation, and the proposed control structures have been designed to withstand the 100-year storm event. A 100-year storm surge is not expected to overtop the dunes. However, in the unlikely event that ocean waves did wash over the dunes, any salt water in the water management system will be detected by a monitoring system and will be collected and drained from the system through sumps and water control structures. There are numerous dune breaches on the site which have been caused by various events over time. As part of Phase I, Admiral will repair these dune breaches and restore them to their natural state. The golf course to be constructed as part of the Phase I development will be irrigated with treated domestic wastewater, except within 500 feet of the Phase I property boundaries. The area to be irrigated with treated wastewater will include about 90 percent of the Phase I golf course, or about 75 acres. The remaining golf course area, within a 500-foot buffer, will be irrigated with potable water. All golf course irrigation water, whether treated wastewater or potable water, will be imported to the Phase I development from west of the Intracoastal Waterway. The golf course fairways will receive approximately two inches of treated wastewater per week, or approximately 100 inches per year. This is approximately twice the annual rainfall on site. The amount of water imported to the Phase I development for golf course irrigation purposes will be about 600,000 gallons per day. The irrigation water on the golf course will percolate through the soil and into the groundwater table. It will then move laterally into the lake system. The flow of this groundwater will be from the water table into the lake system at all times, rather than in the other direction, except for a small portion of the flow beneath part of three golf fairways which will tend to flow off site. Nothing about these flow regimes will adversely affect off-site locales through violation of applicable water quality standards. As described, the treated effluent for fairway irrigation will be piped initially from the existing wastewater treatment plant in the western part of Palm Coast, a development located west of the Intracoastal Waterway. Later, it is expected that treated effluent from a wastewater treatment plant located at Hammock Dunes will be used for irrigation. This plant will be located north of the Jungle Hut Road, outside the boundaries of Phase I. The plant will serve to treat sewage from the entire Hammock Dunes development. Until it is constructed and builds up sufficient effluent volume to supply the effluent needed for golf course irrigation, effluent will continue to be piped from the Palm Coast plant. The interim effluent for fairway irrigation will be supplied from a domestic sewage treatment plant which has no industrial component to its wastewater influent. Water quality analyses of the effluent reveal no heavy metal concentrations or presence of any priority pollutants. Any surface runoff from Phase I will be conveyed by overland flow and grassy swales to the interconnected lakes which will serve as wet detention ponds. The created lakes and marshes will be planted with littoral zone vegetation. The created marshes will have 4:1 side slopes from finished grade (about eight feet NGVD) to the control elevation of four feet NGVD. From the control elevation to a water depth of eighteen inches, the side slope will be 10:1. The design water depth of the entire remainder of the marshes will be eighteen inches except for a channel about 20 feet wide, the sides of which will slope to a depth of 6 feet at a 2:1 ratio. The lakes themselves will have over ten miles of shoreline. About three and one-half miles of this lake shoreline littoral zone (or about one- third of the total) will be at a side slope of 10:1 with the remainder being at a side slope of 4:1. In determining the impact of the proposed system on the recharge and storage in the surficial aquifer, factors which must be considered include rainfall, filling, excavation, evaporation from water bodies, evapotranspiration from vegetation, and effluent application. The net effect of the system proposed by Admiral will be to increase the amount of recharge and storage in the surficial aquifer. The increase in stage of the surface waters on site to elevation 4.0 feet NGVD as a result of the water control structures, combined with the approximately 600,000 gallons per day of water imported to the Phase I development, will increase the availability of groundwater in the general area of the project site. Presently, in the area of Phase I, water table elevations range from approximately one and a half feet above mean sea level to about six and a half feet above mean sea level. The lowest points in the water table are located on property closer to the Intracoastal Waterway. This explains why individuals with shallow wells tapping the surficial aquifer experience salt water intrusion from the Intracoastal Waterway. Removal of the existing system of mosquito control ditches and associated structures and replacement with the proposed surface water management system and treated effluent irrigation will result in higher groundwater elevations. As a result, the saltwater/freshwater interface will be improved in favor of the freshwater side, limiting saltwater intrusion. This aspect of the proposed system will benefit existing users of the surficial aquifer located between the western boundary of the site and the Intracoastal Waterway. The use of treated effluent rather than potable water for golf course irrigation allows increased availability of potable water for other uses which require the water to be potable. In essence, this arrangement conserves the water resources of the region. Pollutants which are expected to be present in tide runoff from Phase I are the metals: cadmium, chromium, copper, iron, lead and zinc; nutrients: total nitrogen, total Kjedahl nitrogen, nitrates, total phosphates and orthophosphates; coliforms: total coliforms and fecal coliforms; oil and grease; and pesticides. Admiral does not propose a stormwater discharge facility which utilizes a design described in Rule 40C-42.035, Florida Administrative Code, entitled "Stormwater General Permits." In lieu of this design, Admiral has proposed an alternative treatment system. The alternative treatment system utilizes grassed swales, created freshwater marshes and created lakes which act as wet detention basins with a mean residence time of approximately 92 days, gradual sideslopes and planted littoral zone vegetation. Admiral's proposed system maximizes treatment efficiencies, i.e., pollutant removal, through the following mechanisms: filtration, sedimentation, adsorption, precipitation, biological activity and dilution. The alternative treatment system proposed by Admiral, will provide equivalent pollutant removal when compared with the stormwater facility designs generally permitted. The proposed system discharges at two culverts at the south end of the site to the Florida East Coast Canal and at the existing 800 foot ditch in the southeastern part of the project. These three points are considered as discharge into the receiving surface waters. Maximum metal concentrations in the groundwater seepage through the proposed fairways and swales are found immediately below the fairways and swales. These concentrations do not exceed allowable values for drinking water and Class III waters. Concentrations of nutrients can be expected in the groundwater seepage below the fairways and swales. The concentration for nitrate will not exceed the drinking water standard. Concentrations of all nutrients are expected to fall within the background range of the surrounding receiving surface waters and will not cause an alteration so as to cause an imbalance in natural populations of aquatic flora and fauna. Metal concentrations in the groundwater seepage will exist immediately below the proposed wet detention ponds. They will not exceed drinking water standards and Class III standards. Nutrient concentrations in the groundwater seepage will exist immediately below the proposed wet detention ponds. The expected concentrations of nitrate immediately below the ponds will not exceed the drinking water standard for nitrate. Expected nutrient concentrations fall within the range of existing background conditions in the receiving surface waters and will not result in an alteration so as to cause an imbalance in natural populations of aquatic flora and fauna. The quality of the surface water in the proposed lake system will meet Class III surface water quality standards. This applies in the lakes and, at the point of discharge from the proposed lake system, to the adjacent Class III receiving surface waters. This is true for all of the pollutants likely to be generated by the Phase I development, including metals, nutrients, oil and grease, coliforms, and pesticides. In addition to meeting the Class III criteria, the concentrations of pollutants in the discharge from the proposed Phase I lake system will be within the range of the concentrations of those pollutants already in the adjacent Class III surface receiving waters. Consequently, the discharge will not result in the dominance of nuisance species; not alter nutrient concentrations so as to cause an imbalance in natural populations of aquatic flora or fauna; not create nuisance conditions or conditions harmful to health or safety; and not contain constituents in concentrations which are carcinogenic, mutagenic, teratogenic or toxic to humans or aquatic species. All minimum criteria will be met in both surface water and groundwater. Due to the type of soil and the removal mechanisms present, no coliform bacteria levels are expected in the groundwater as a result of the proposed system. Coliform bacteria discharged into the receiving waters will not exceed standards for Class III waters. Oil and grease in runoff from Phase I will be prevented from entering the wet detention systems and any receiving waters by the installation of oil baffles or skimmers. Given the type of development proposed for Phase I and the pollutant removal mechanisms in the proposed system, the concentrations of metals, nutrients, oils and grease, and coliform bacteria will meet primary and secondary drinking water standards prior to discharge into the wet detention ponds. Admiral will employ an integrated pest management program to control pests. This plan is required to be submitted to the District staff for review and approval. Given the limitations on class and characteristics of allowable pesticides, there will be no exceedance of groundwater water quality standards. The proposed system will not create a water quality nuisance or a condition harmful to health or safety or discharge pollutants in concentrations which are harmful to humans, wildlife or aquatic species. Admiral will employ a surface water and groundwater monitoring program for all parameters of concern. This will alert the applicant to problems that may occur related to the parameters and allow remedial action to be taken. Given the high degree of pollutant removal in the proposed system, a zone of discharge of 100 feet would be sufficient to protect the existing users of the surficial aquifer. The groundwater beneath the golf course fairways and swales will meet the primary and secondary drinking water standards and the other G-1 groundwater standards within 100 feet of the point of discharge. The quality of the groundwater beneath the proposed lakes will be unaffected by the lakes because the groundwater flow will basically be from the water table into the lakes, rather than in the other direction. Even if water were to flow out of the proposed lake system into the adjacent groundwater, no groundwater quality standards would be violated because the water in the lakes will meet the primary and secondary drinking water standards. Groundwater flowing off site will also meet the primary and secondary drinking water standards. During the construction, erosion problems will be prevented by Admiral's erosion control plan. The erosion control plan submitted with the application for the Phase I MSSW permit is adequate to protect Class III water quality standards during construction of the Phase I surface water management system. Dewatering during construction will be conducted in accordance with the Hammock Dunes Surficial Aquifer Mitigation Plan to ensure that groundwater levels are not lowered and existing users of the surficial aquifer are not harmed. The Dunes Community Development District, organized pursuant to Chapter 190, Florida Statutes, will own, operate and maintain the proposed water management system. This organization will perform any necessary littoral zone management. The proposed system will be easy to operate. The proposed system will not cause an increase in the peak rate of discharge from the Phase I site. Phase I will promote no effect on surface water levels off-site. On the project site, both ground and surface water levels will be stabilized. Phase I will not adversely impact the off-site storage and conveyance capacity of any surrounding water bodies or water courses. On site there presently exist two maple swamp areas which have been identified as wetlands. They are imperfectly drained. These areas will be preserved with the exception of approximately one acre on the northern end of the southernmost maple swamp which will be filled for construction of a roadway. Varn Lake is a borrow pit presently on the site. It has nearly vertical side slopes. The lake supports a very narrow strip of littoral vegetation. However, it is heavily overgrown with aquatic weeds and is presently very low quality habitat for fish. Varn Lake will, according to the plan of development, be renovated by the mechanical removal of aquatic vegetation resulting in a vastly improved aquatic and wetlands habitat which is more accessible than that which presently exists. A small isolated cattail pond of less than one acre in size was also identified as a wetland area. It will be filled as a result of the development. The mosquito ditches on site are weed-choked and subject to periodic weed removal by the East Flagler County Mosquito Control District, which disrupts the aquatic species that are found there. The mosquito control ditches which exist on the Phase I property have served to lower the water table, thus reducing or eliminating any wetlands functions served by what were once interdunal swales. Although the mosquito control ditches do support some fish and some aquatic and wetlands vegetation, the quality of the vegetation is poor. Varn Lake is not a very good fish habitat. Because of the vertical side slopes of the ditches and because of the heavy overhanging canopy of trees, the suitability and availability of the ditches as a foraging area for wading birds such as the wood stork is severely limited. In summary, there are limited wetlands functions being served by the mosquito control ditches. The development of Hammock Dunes, Phase I, will have a beneficial effect on wetlands in the area. The lakes to be constructed as part of the proposed surface water management system will be a habitat far superior to the existing mosquito ditches. Several marsh wetlands will be created. There will be a substantial increase in water body edges planted with littoral zone vegetation around the lakes and marshes. These littoral zones, of which 70 per cent will be at a 4:1 slope and 30 per cent will be at a 10:1 slope, will serve as shallow water habitat for fish. Varn Lake, after being renovated by mechanical removal of the aquatic weeds, will be incorporated into the connected lake system. The proposed surface water management system would raise the water table and thus serve to rewater two maple swamp wetland areas which are left undisturbed by Hammock Dunes. This change in elevation of the water table enhances wetlands functions performed by the swamps. The hammock located to the west of the site will also profit by the increase of the elevation of the water table by making it more resistant to severe freezes. Aquatic or wetland-dependent species are those species which depend upon aquatic or wetland habitats for the propagation or reproduction of the species such that if the aquatic or wetland habitat were eliminated, the species would not survive in that place. Aquatic or wetland-dependent species which have been identified as possible users of the project site includes various varieties of fish, waterfowl, aquatic birds, alligators, marine turtles, peregrine falcons, raccoons, opossums, Florida water rats and gopher frogs. The proposed surface water management system will have a beneficial impact on aquatic and wetland-dependent species, and the diversity of these species utilizing the Hammock Dunes, Phase I, property should increase. The present linear system of mosquito ditches on the Hammock Dunes, Phase I, property is not adequate to provide food for large numbers of water fowl and aquatic bird species. Consequently, few of these birds are present and virtually none of them nest in this area. There will be a great increase in the utilization of the Hammock Dunes, Phase I, property by water fowl, wading birds, and other water-dependent bird species after the proposed surface water management system is constructed. This increase will result from the increased amount of surface water, the extensive littoral zones and the created marshes. Wading birds such as the woodstork, snowy egret, and blue heron are rarely present on the Hammock Dunes, Phase I, property. These birds find little opportunity to successfully feed in the area due to the vertical side slopes of, and the canopy of vegetation over, the existing mosquito ditches. No nesting of these species presently occurs on the Hammock Dues, Phase I, property. Woodstorks nest with the occurrence of seasonal shallowing of open wetlands which creates a range area to gather food for their young. The present situation at the site is not conducive to nesting activities for the woodstorks. Following the construction of the proposed surface water management system, these bird species will become more prevalent, feeding in the created marshes and the lake littoral zones. Also, the islands to be created in the marsh areas may serve as rookeries, or breeding areas, for some of these wading birds in the future. Woodstorks have not been sighted on the property. Other wading birds such as the snowy egret and the blue heron infrequently attempt to forage in the mosquito ditches or along the edge of Varn Lake. The proposed repairs to the breaches in the dune system will have a beneficial effect on the peregrine falcons and marine turtles that use the beach area. Gopher frogs are apparently not present on the Hammock Dunes, Phase I, property, and therefore impact to this species as a result of the construction and operation of the proposed surface water management system is doubtful. Residents and occasional wildlife will be adversely impacted by the loss and disturbance of the wetland habitats and edges of the mosquito control ditches on site during the intervening construction phase, but in the finished product, wildlife habitat will be superior to existing circumstances. The District staff has recommended and Admiral has indicated that it accepts the following conditions to the issuance of the proposed MSSW permit: All retention basin side slopes must be seeded and mulched within 30 days following their completion and a substantial vegetative cover must be established within one year of seeding. A bleeddown orifice or weir must be incorporated into the final design of the outfall structures from the water management system. This bleeddown device must have an invert elevation of 4 feet NGVD and discharge capacity of 2 cfs. Plans showing the bleeddown device must be submitted to the District for District staff approval prior to the construction of the outfall structure. All construction dewatering must be performed in accordance with the Hammock Dunes Surficial Aquifer Mitigation Plan dated June 27, 1984. All construction activities must be performed in accordance with the Hammock Dunes Phase I Erosion Control Plan received by the District on June 6, 1986. In addition to the parameters set forth in the surface water monitoring plan submitted by the permittee, the following parameters shall be sampled on a quarterly basis at the stations specified in the plan: Total coliform Fecal coliform Total N Nitrate as N TKN Orthophosphate Pesticides applied to golf course Cadmium Chromium Copper Lead Iron Zinc After three years of operation the permittee may request a modification in the parameters, frequency and duration of the monitoring program based on a demonstration that there is an adequate data base to predict future trends in the effects of discharge from the proposed project and the treatment efficiency of the system. A staff gauge with a known datum, established by the Florida Registered Land Surveyor, must be installed in the Phase I lake system. Admiral Corporation will be responsible to document the surface elevation of the lake system on a daily basis for a period of three years following the completion of the Phase I discharge structures. This data will be reported to the District on a yearly basis. Concurrent with the beginning of excavation of the proposed stormwater lakes, the permittee must submit a planting and management plan for the littoral zone and freshwater marshes for District staff approval. The plan must include the wetland species which will be used, the planting densities, timing of planting and any management activities that are intended to ensure the continuance of health of the littoral zone. Application of sewage treatment plant effluent to the golf course is contingent upon approval by the Department of Environmental Regulation pursuant to Chapters 17-4 and 17-6, F.A.C. Prior to pesticide use, the permittee must submit an Integrated Pesticide Management Plan for District staff approval. The selection of pesticides must be based upon short half-lives (1-10 weeks), a low n- octanol/water partition coefficient and suitability to site specific soil and groundwater ph. The use of organochlorides will not be allowed. Permittee must adhere to the fertilizer recommendations set forth in the manual for Commercial Turfgrass Management by the University of Florida complied by Florida Turf-Grass Association. The nutrient loading attributable to the application of effluent shall be considered a source of fertilizer for the golf course and additional non-effluent fertilizer sources shall be utilized only to supplement the quantity supplied by the effluent in supplying the total golf course fertilizer needs. Permittee must excavate sumps in Lakes A, B, K, Q and Varn Lake to the following dimensions: bottom elevation -8.0 feet; side slopes 2H:lV (below 1 foot NGVD); and bottom dimensions of 10 ft. x 10 ft. Permittee must alter the design of Water Control Structure #3 and #2 to incorporate an operable water control gate or valve which is capable of draining the surface water management system down to an elevation of 1.0 ft. NGVD. These gates or valves must be sluice type devices which are capable of draining water from the bottom of the lake. These gates or valves must be locked in the closed position and may only be opened at the direction of the District. Permittee must monitor chloride concentrations at depths of 1, 3 and 5 feet at surface water monitoring stations SW-5 through SW-12 on a quarterly basis. This data must be submitted to the District annually. Should the lake system become contaminated with seawater due to storm surge overtopping the dunes, permittee must take appropriate action to drain the saltwater from the lakes through the use of the gate or valves placed in Water Control Structures #2 and #3 and the sumping or siphoning of saltwater from the lakes at the locations of the Sumps. Permittee must notify the District before undertaking any plan to drain the saltwater from the lakes to ensure that water quality standards are met. These conditions are reasonable and are accepted as fact and as a justifiable policy choice.
Findings Of Fact Ocean Reef Club, Inc., is the developer of certain lands located on the northern end of Key Largo, Monroe County, Florida. The development began as a fishing village in the 1940's and now includes private residences, a marina, and residential docking facilities. Ocean Reef applied in 1982 to DER for a permit to construct a residential docking facility known as Fisherman's Wharf. The facility was to provide a number of parallel docking spaces with an access channel following an existing tidal creek to the northeast connecting to a waterway known as the Harbor House Basin. The permit was issued on October 5, 1984, authorizing construction of a 4-foot wide parallel dock approximately 600-feet long, the dredging of a turning basin through the excavation of approximately 1800 cubic yards of material and the dredging of some 200 cubic yards from an existing tidal creek along a 480 lineal foot length of the creek to a width of 5-feet; all located in No Name Creek, a tidal creek connecting Harbor House Marina to Pumpkin Creek, in Card Sound, Key Largo, Monroe County, Section 11, Township 59 South, Range 41 East. That permit was extended by a letter dated June 10, 1987, and now carries an expiration date of October 5, 1989. The existing permit held by Ocean Reef Club, valid until 1989, would allow the direct dredging of a tidal creek vegetated by seagrasses over a 400- foot length yielding a direct dredging of seagrasses of some 3000 square feet. During the two-year processing time leading to issuance of the permit, Ocean Reef sold a portion of the property comprising the access channel to third parties who now will not grant their permission authorizing channel construction across their property. As a result, in 1987, Petitioner requested a major modification to permit no. 440601649. Although Petitioner attempted to show that its change of plans had been inconsistently processed by DER as a new permit application when DER was obligated to treat it as a modification of a prior permit which would require no new application, processing, or permit, Petitioner was unable to do so. Petitioner's expert professional land surveyor, Joseph Steinocher,, concurred with DER witnesses Kelly Jo Custer and David Bishof that the Ocean Reef plan changes were so significantly altered as to constitute a wholly new project. Steinocher specifically indicated it was a "significant change in that there is no relationship between the two," and Custer, DER's marina permitting specialist, testified that DER's consistently applied policy is to require all such significant permit modifications to be processed de novo as wholly new permit applications because to do otherwise would not be in the public interest. Custer was also qualified as an expert in marine biology and water quality, and from Custer's viewpoint, the changed plans constitute a new and different project for many reasons but primarily because the project impacts on water which have been designated Outstanding Florida Waters (OFW) during the intervening years. The project revision/new permit application plans changed the configuration of the turning basin, providing for a kidney-shaped upland basin with the utilization of an additional portion of No Name Creek, extending Southeasterly toward the entrance of a water body known as Fisherman's Cove. Because the project initially proposed disturbance of wetlands and dredging of mangroves, a mitigation area of some 10,300 square feet was included in the plan. The original proposal called for the straightening of an oxbow in the existing tidal creek and the placement of fill through approximately one-half the reach of the tidal creek to gain access to the dredge area with the fill to be removed after construction. During the processing of the latest permit application, adverse comments were received from DER staff members, and the Petitioner modified the application to eliminate the straightening of the oxbow. The pending proposal involves the construction of 24 boat slips along a floating dock, the installation of boulder rip-rap, and the placement of culverts to allow access to a central island to remain after construction of the docking facility. As a result of prior permit agreements between the parties, Ocean Reef Club had conveyed approximately 730 acres to the State of Florida Board of Trustees of the Internal Improvement Fund by special warranty deed dated March 17, 1982. Petitioner asserted but failed to prove up that all construction involved in the pending proposal is landward of those lands either conveyed by that special warranty deed or otherwise in the control of the State of Florida and in fact would be wholly upon its own property. Even had the private property encapsulation of the construction been established, Petitioner's registered land surveyor admitted that the tidal creek entrance is within the limits of the deed to the State of Florida. Access for the proposed 24-slip facility will be through the existing tidal creek that has water depths ranging from minus 2.2 feet to in excess of minus 8 feet at low tide. The earlier proposal would have required only a small portion of the natural creek to be used by motor boats. The project contemplated in 1984 and the one which is the subject of the present litigation are not comparable either biologically nor legally. It is noted that one condition of the 1984 permit even required navigational barriers to be placed at the mouth of No Name Creek. Accordingly, it is specifically found that the significant plan changes render the pending Ocean Reef permit application truly a new project rather than a minor modification as contemplated by Chapter 17-12 F.A.C. Petitioner also attempted to demonstrate that DER's denial of the new permit application was inconsistent with its issuance of permits for similar marina projects in other locations. Neither these allegedly similar applications, supporting plans therefor, nor permits were offered in evidence for comparison. Moreover, for one reason or another, some of the named projects differed so much from the subject application that one witness, Kenneth L. Eckternacht, expert in hydrographic engineering, physical oceanography, and navigation, characterized the comparison as "apples to monkies." Some projects could only be compared to the applicant's proposal by one similar component, i.e. elimination of, and mitigation with regard to, mangroves. For this reason, Dr. Snedeker's limited testimony in this regard is discounted. Some projects could not be conclusively identified as within OFW. None involved the use of the type of creek system involved in the instant project. Ocean Reef Club also could not show that the current permit denial is inconsistent with the granting of the permit for the project as previously conceived in 1984, and which project cannot now be constructed due to Ocean Reef's sale of certain land to uncooperative third parties. As set forth in the foregoing findings of fact, the two projects are neither biologically nor legally identical or even clearly comparable. Petitioner's assertion that it has proposed special or enhanced mitigation because the existing permit, still valid until 1989 but now impossible to comply with, allows direct dredging of approximately 3,000 square feet while the present permit application, as modified, would not require dredging this 3,000 feet, is rejected. Under the new project plans, the proposed basin will be located immediately adjacent to the existing tidal creek which would provide the navigational access to and from the basin. The connection will be created between the basin and the creek by excavating only 100-150 square feet of mangroves which lie between the creek and the area of the proposed basin. In making the immediately foregoing finding of fact, the testimony of witnesses has been reconciled without imputing any lack of credibility to any of them. Respondent's expert, Kelly Jo Custer, expert in marine biology and water quality and also their agency marina specialist, testified that the cross-hatching on the project plans, if read to scale, confirms the testimony of Petitioner's witnesses that the square footage of mangroves to be removed is 100-150 square feet and that the cross-hatching must take precedence over the raw number copied onto the plans. The wetlands in and around the project site, including No Name Creek, are within an OFW, specifically the Florida Keys Special Waters. The project site is located in North Key Largo, approximately one-half mile north of John Pennekamp State Park within the Atlantic Ocean and adjacent to the Biscayne Bay/Card Sound Aquatic Preserve. All of these waters are Class III surface waters. The marina basin itself will be excavated to a depth of minus four feet mean low water. The 24 proposed boatslips will accommodate moorage of boats as large as 25 feet with a draft of two feet. The marina basin will enhance recreational values and channel, despite its greater depth, and at the inner portions of its several bends. It is also implausible that Petitioner's plans to limit boat size through condominium documents to be enforced through a homeowners association, to install mirrors, signalling devices, and latches at certain points along the creek, and to install tide staffs at creek entrances will prevent potential head-on boat collisions or bottlenecks in No Name Creek. It is equally implausible that these procedures can provide reasonable assurances that there will not be a chronic increase in water turbidity from increased use or damage to biota from propellers and boat impact. The witnesses generally concurred as to the present ecological status of No Name Creek. It contains Cuban shoalweed and turtlegrass scattered with varied density throughout, and especially found in two patches between the proposed basin and the point at which there is a drastic bend or oxbow in the creek. The seagrasses in the creek serve many valuable functions including providing a substrate upon which epiphytes may attach, and providing a source of food and refuge for fish and small invertebrates. Seagrasses also fix carbon which they absorb from the sediments and water column through photosynthesis. Green and red algae found throughout the creek provide habitat and carbon fixing functions similar to that provided by the seagrasses. Corals and sponges are present. Three species of sponge located in the creek are found only in the Florida Keys and nowhere else in the United States. Other creek biota include barnacles and oysters attached to mangrove roots, lobsters, anchovies, needlefish, grunts, mojarres, electric rays, various small fish, and invertebrates. Biological and botanical diversity is an important measure of the creek's rich ecological quality and value. The increased boat use of No Name Creek inherent in this dredging project will adversely affect the quality and diversity of the biota. In a creek of this configuration with mean low tide occurring roughly every 12 hours and NEAP tides approximately every two weeks, direct impact of boat propellers is a certainty. The shallowest parts of the creek tend to be limerock shelves which provide a hospitable substrate for the corals, and which are most susceptible to propeller damage, as are the seagrasses and sponges. Petitioner's assertion through Mr. Castellanos and Dr. Roessler that all boaters can be relied upon to employ tilt motors to best advantage in shallow water so as to avoid overhanging mangrove branches at the creek's edges (shores) and so as to keep their boats within the portion of the channel away from submerged mangrove roots and further can be trusted to proceed slowly enough to allow slow-moving water creatures to escape their propellers is speculative and unrealistically optimistic. Despite all good intentions, the strong currents of this creek and its meandering nature work against the average pleasure boater keeping to the narrow center channel. An even more compelling problem with this project is that increased sustained turbidity from propellers and boat movement within close range of the creek bottom will scour the creek bottom and/or stir up the bottom sediment on a regular basis. Once suspended, bottom particles will be redeposited on the seagrasses, impeding photosynthesis and smothering the sponges and corals. Upon the testimony of Custer, Echternacht, and Skinner, and despite contrary testimony of Roessler and Larsen, it is found that the admittedly strong currents in the creek will not flush the particles sufficiently to alleviate the loose sediment problem, and may actually exacerbate the chronic turbidity problem. Strong currents can create a cyclical situation in which, as the seagrasses die or are uprooted, even more particulate matter is loosened and churned up. Chronic turbidity of No Name Creek has the potential of violating the applicable water quality standards for biological integrity, for turbidity, and for ambient water quality. These impacts will not be offset by Petitioner's creation of 38,100 square feet of new underwater bottom because, although this new area will become vegetated, it will never be as rich or as diverse as the existing bottom. This is also true of the pilings and rip rap in regard to sessile animals/barnacles. Petitioner's plan to replant red mangroves over 10,300 square feet may be sufficient in mitigation of the loss of 100-150 square feet of mangroves by itself (see Finding of Fact 16) but for the foregoing reasons, it does not constitute full mitigation for the new permit application. The project will be of a permanent nature. The project will not adversely affect significant historical and archeological resources.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying the requested permit. DONE and RECOMMENDED this 20th day of September, 1988, at Tallahassee, Florida. ELLA JANE DAVIS, 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 20th day of September, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-4660 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1, 2, 3, 4, 5, 7, 10, 11, 20, and 25 are accepted. Accepted except for the last sentence which is rejected upon the greater weight of the credible evidence as a whole. Accepted but specifically not adopted as stated because the plan calls for destruction of certain mangroves (100- 150 ft.) and the planting of others as opposed to mere "addition." 6, 9, 12, and 27 are accepted in part and rejected in part. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. Although there is testimony to this effect, none of the surveys introduced nor other competent evidence allow the undersigned to definitely plot the description contained in Exhibit P-9 with respect to the current permit application plans. In any case, the proposals are not dispositive of the material issues in this case. The reservation, if it does apply, supports denial of the permit. See FOF 9. 8, 26, 28, 29, and 32 are rejected as subordinate and unnecessary, and in some cases as mere recitation of testimony or unproved. See next ruling. 13, 14, 15, 16, 17, 18, 19, 21, 22, 30, 31 and 33. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony which is reflected in the facts as found. 34-36. Rejected for the reasons set out in FOF 13. Respondent's PFOF 1, 2, 4-6, 9, 11, 14-22, 24-34, 38-43, 48-52, 54, sentence 2 of 57, all except sentence 1 of 59, and 60 are accepted but not necessarily adopted in the interest of space and clarity or because they are cumulative or mere recitations of testimony. 3. Rejected for the reasons set out in FOF 16. Rejected. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. In any case, the proposal is immaterial to the environmental issues dispositive in this case. See FOF 9 and ruling on Petitioner's 6, 9, 12 and 27. Rejected as this was the unproven opinion of Mr. Poppel. No consent judgment is in evidence. 10, 12, and 13. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony as reflected as the facts as found. 23, 53, sentence one of 57, and sentence one of 59, are rejected as argument of counsel or statement of position. 35-37, 44-47, 55, 56, 58, and 61-64 are rejected as subordinate, unnecessary or cumulative to the facts as found. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether the Department should grant a permit to IMCF to mine and ultimately reclaim 145 acres of wetlands located primarily in Section 14, Township 31S, Range 23E, Polk County, Florida ("Section 14 Area") on the western edge of a larger wetlands system known as "Hookers Prairie."
Findings Of Fact Background and Procedural History On July 9, 1987, IMCF filed an application with the Department for a permit to mine phosphate rock from and then reclaim the Section 14 Area. The Section 14 Area is owned by IMCF. On December 2, 1987, in response to a determination of incompleteness issued by the Department, IMCF supplied additional information which supplemented and modified the original application. The application as augmented and modified was determined to be complete by the Department on December 7, 1987. Department representatives carried out onsite inspections of the Section 14 Area on September 22 and October 9, 14, and 19, 1987, and issued a written permit application appraisal. Based upon the information contained in the application and on the site visits, the Department determined to issue the requested permit to IMCF subject to certain draft permit conditions. The Department directed IMCF to publish notice of the Department's intent to issue the permit. The Department's notice of intent to issue was published in the Lakeland Ledger, a newspaper of general circulation in the location of the Section 14 Area on March 15, 1988. Petitioners objected to the Department's proposed issuance of the permit by filing their Petition to Intervene and Request for Formal Hearing with the Department on April 7, 1988. Petitioners have standing to intervene in this proceeding and participate as parties for the purpose of objecting to the issuance of the subject permit. Description of Proposed Mining Project The wetlands that make up the Section 14 Area are part of a larger 162 acre project area proposed to be mined and reclaimed by IMCF. This mining area is located to the south of the eastern portion of Bradley Junction, a small residential community. The Section 14 Area wetlands make up 131 acres of the overall project area. The remaining 31 acres of uplands involved in the proposed mining project are not subject to Department permitting requirements. IMCF has all necessary permits and approvals to gain access to the upland areas to carry out mining operations. These uplands areas are located primarily in the northernmost part of the project area directly abutting the location of certain residences and churches in eastern Bradley Junction. The jurisdictional wetlands in the Section 14 Area are located no closer than 450 feet from a residential structure in Bradley Junction. Most of the wetlands in the Section 14 Area are substantially farther away from the Bradley Junction residences. The initial step in the mining process will be to construct a ditch and berm system around the Section 14 Area. This ditch and berm system will effectively segregate the mining area from adjacent wetland areas that are to remain undisturbed. Approximately 99 acres of the Section 14 Area wetlands will actually be mined; the remaining 32 acres will be disturbed by the construction of the ditch and berm system. Following the construction of the ditch and berm, land clearing will take place. Once land clearing is completed, mining operations will commence. In phosphate mining operations, large, electrically-powered draglines are used. The dragline first removes and casts aside the "overburden" which is the earthen material that over lies the "matrix." The matrix is the geologic deposit that contains phosphate rock. The dragline extracts the matrix and places it into nearby pits where high- pressure waterguns are used to create a slurry of the matrix material. This slurry is then pumped to the beneficiation facility several miles distant from the mining operations where the matrix slurry is processed to extract the phosphate rock. The matrix is composed primarily of three major components: phosphate rock, sand, and clay. In the beneficiation process, the phosphate rock is separated from the other two components. Residual clays are then pumped to large settling areas where the clays are allowed to settle and consolidate prior to reclamation. No clay settling area is proposed to be located in the Section 14 Area. The sand "tailings" that are generated in the beneficiation process are pumped back to mined areas for use in reclamation programs. Sand tailings will be used in the reclamation proposed for the Section 14 Area. IMCF proposes to initially carry out ditching and berming activities in the Section 14 Area. The central and southern portion of the project area is planned to be mined during the period from July 1989 and June 1990. The dragline will then mine an area to the west outside of the project area. The dragline will return to mine the northern portion of the project area in May 1991. Actual mining operations in the northern portions of the Section 14 Area wetlands and the uplands near Bradley Junction residences will occur over approximately a seven-month period and the dragline will depart the area in December 1991. There are approximately 800,000 tons of phosphate rock underlying the Section 14 Area wetlands. After extraction and beneficiation, this rock will be used for the production of phosphate fertilizer or other phosphate-based products. Project Modifications IMCF has agreed to the following modifications to the Section 14 Area mining and reclamation project as originally proposed in July 1987: The southern boundary of the Section 14 Area has been moved to avoid encroachment on a small stream channel in the upper reaches of the South Prong of the Alafia River, the outlet from Hookers Prairie. The project has been modified to conform to setback requirements recently adopted by the Board of County Commissioners of Polk County. Under the revised setback requirements, the edge of a mine cut may come no closer than 100 feet from the IMCF property boundary or 250 feet from an occupied residence, whichever distance is greater. In response to concerns about noise and lights associated with mining operations, IMCF has agreed to restrict the hours of mining operations. Mining operations will not take place during the period from 11:00 p.m. to 7:00 a.m. when the dragline cab is located within 700 feet of a residence. In addition, mining operations will be suspended on Sundays during the period from 7:00 a.m. through 3:00 p.m. when a dragline cab is located within 700 feet of any place of worship in the Bradley Junction community. The Polk County Mining Ordinance requires that either a berm or a wire fence be constructed on the perimeter operations to limit unauthorized access. IMCF has agreed to construct both a berm and a solid wooden fence, at least six feet high, along the IMCF property boundaries adjacent to residences located in the Bradley Junction community. IMCF has agreed to expedite the reclamation of areas mined adjacent to residences in the Bradley Junction community. The area encompassing the first mine cut closest to the residences (a distance of 250 to 300 feet) will be recontoured and revegetated within 90 days following completion of mining in the area. The area encompassing the first two mine cuts (a distance of 500 to 600 feet) will be recontoured and revegetated within six (6) months following completion of mining in the area. Type, Nature and Function of Section 14 Area Wetlands The Section 14 Area is composed of approximately 127 acres of herbaceous (shrubby) wetlands and approximately 4 acres of young hardwood (forested) wetlands. Western Hookers Prairie, including the Section 14 Area, has been adversely impacted by land use activities over the last several decades. Parts of the area have been drained and cleared to accommodate agricultural uses. The resulting widely fluctuating water levels have induced the extensive growth of what the Department considers to be undesirable "nuisance species" such as cattails and primrose willow, in these areas. Other areas, especially in the southern portion of the Section 14 Area, contain some relatively diverse herbaceous wetland systems. The Section 14 Area also has been adversely impacted to some extent by emergency releases of phosphogypsum and acidic process wastewater generated by the chemical manufacture of phosphate-based fertilizer. Such spills occurred in the 1950s and 1960s and resulted in the deposition of high levels of phosphorous and fluoride in western Hookers Prairie. However, the Section 14 area is less affected than eastern parts of the Western Prairie due to a natural slight rise in elevation along the eastern edge of Section 14, causing a natural flow of water containing the contaminants generally south around Section 14. Wetland systems, in general, can perform certain valuable ecological functions. These functions include: nutrient retention/removal, sediment trapping, flood storage desynchronization, groundwater recharge, food chain support, wildlife habitat, and recreation. Certain wetland systems also serve a shoreline protective/wave dissipation function but that function is not relevant to herbaceous wetland systems like the Section 14 Area that are not adjacent to open water. Because of the nature of the Section 14 Area and the stresses previously imposed upon it, its ability to perform wetland functions has been reduced. The nutrient retention/removal function refers to the ability of the vegetation in wetland systems to remove excess nutrients from water. The Section 14 Area does not perform a significant nutrient retention/removal function. The available data indicate that waters leaving western Hookers Prairie at its outlet to the South Prong of the Alafia River contain more nutrients on balance than do waters entering the system. It is not uncommon for wetlands that are in headwaters of a water system to be net exporters of nutrients. In addition, in this particular area, the historical spills of phosphogypsum and acidic process wastewater have overloaded the sediments in the area with nutrients. The sediment trapping function refers to the ability of wetland systems to filter sediment (suspended particulate matter) from water as it travels through the wetland area. The Section 14 Area performs a reduced sediment trapping function. Although some of the water entering the Section 14 Area comes from Whiskey Store Creek to the north, some of the water entering Section 14 has already traveled relatively long distances through the rest of western Hookers Prairie so that most of the water entering the Section 14 Area does not contain high levels of sediments. As more and more parts are excised for phosphate mining, the importance of the sediment trapping function of the remaining portions, even Section 14, increases, at least until reclamation projects succeed. See "J. Cumulative Impact," below. The flood storage/desynchronization function refers to the ability of a wetland system to store rain water generated during storm events and then to release this water gradually, thus reducing the likelihood of downstream flooding. Hookers Prairie, as a whole, does serve a valuable flood storage/desynchronization function. The approximately 130 acres involved in the Section 14 project area only amount to three to four percent of the overall water storage capacity in the affected area. But the Hookers Prairie wetlands have an approximately two foot thick layer of peat that acts as a sponge to absorb water during inundation and slowly release the stored water over time. It could be misleading to compare the storage of wetland to other water storage acreage on an acre for acre basis. Again, as more and more parts of the Prairie are excised for mining, the importance of the remaining areas increases, at least until reclamation projects succeed. IMCF did not give reasonable assurances as to the cumulative impact of the loss of Section 14 and the other areas under permit on the water storage capacity of the catchment area. See "J. Cumulative Impact," below. The ground water recharge function of wetlands refers to those situations in which a wetland is connected to an underlying groundwater aquifer system in such a way that surface water flows into the wetland system and then down into the underlying aquifer system. The underlying aquifer system is thus "recharged" by the infusion of surface water through the wetland system. The Section 14 Area does not perform any significant groundwater recharge function. Hookers Prairie, including the Section 14 Area, is a topographic depression. Therefore, water can flow out of the uppermost aquifer system (known as the surficial aquifer) into the wetlands, but the reverse is not true. Furthermore, the water in the wetland area cannot move down into lower aquifer systems (such as the intermediate aquifer or the Floridian aquifer) because of the existence of geologic confining layers that underly the Section 14 Area and inhibit vertical groundwater flow. The food chain support function refers to the ability of a wetland to produce organisms or biological material that is used as food by other organisms either in the wetland itself or in surface water areas downstream of the wetland system. The Section 14 Area performs some food chain support functions. Food chain support can be performed in three ways. First, dissolved nutrients, such as phosphorous and nitrogen, can be released into the water. Because of the prior spills into Hookers Prairie, the area is already discharging nutrients in amounts that are normally considered to be high. The second mechanism for performing food chain support is the physical flushing of small aquatic organisms downstream to feed the fish or other larger aquatic organisms. Studies carried out by the United States Environmental Protection Agency indicate that the small organisms found in the downstream reaches of the South Prong of the Alafia River do not appear to be similar to those found at the point of discharge from Hookers Prairie. These data indicate that Hookers Prairie produces and releases this type of food chain support but that its direct impact does not extend significantly into the southern reaches of the South Prong of the Alafia River, as compared to the total production from other tributaries of the river. The third type of food chain support is the release of detrital material (partially decomposed vegetation). Detrital material generated in much of Hookers Prairie is likely to be retained in the Prairie because of the sediment/trapping filtration function discussed above in Finding No. 17(b). However, being adjacent to the outflow from the Prairie to the South Prong, Section 14 could be expected to deliver a larger share of detrital material than the portions of the Prairie further east. The Section 14 Area provides a wildlife habitat function although it does not appear to serve as diverse a group of wildlife as is served by the eastern portion of Hookers Prairie. The Section 14 Area is not utilized for recreational purposes. It is densely vegetated so that access by man is difficult. There are no open water areas that could be used for hunting or fishing. Mitigation IMCF proposes to mitigate the temporary loss of function caused by the mining of the Section 14 Area by reclaiming the area following the completion of mining operations. The first step in reclamation will be the pumping of sand tailings back into the project area to create a land surface at approximately the original grade. The previously moved overburden material will then be spread and recontoured. Stockpiled organic muck material will then be spread over the reclamation area to provide a nutrient source to support plant growth. Department representatives will review and approve the final contours to assure that they are similar to those found in the original natural environment. Following completion of the contouring, the portion of the project area that will be reclaimed as a wetland will be inundated with water and then revegetated with desirable wetland species. The reclamation of the Section 14 Area will be subject to extensive monitoring by IMCF. This monitoring will involve short- and long-term vegetation monitoring and water quality monitoring. The results of this monitoring will be submitted to the Department, and the project will not be released from regulatory scrutiny until certain success criteria are met. During the period of recontouring, revegetation, and monitoring, the berm around the Section 14 Area will remain in place to isolate the area from the adjacent Hookers Prairie system. Once the Department determines that the vegetation in the Section 14 Area has been successfully reestablished, the Department will authorize IMCF to install culverts in the berm to allow for the gradual introduction of exchange of waters between the reclaimed area and the natural Hookers Prairie system. Following this process, after approval by the Department, IMCF will remove the berm area by pushing it back into the ditch and will replant the disturbed area in the previous location of the berm with desirable herbaceous wetland species. At that point, the reclaimed area will be totally reconnected to the rest of the western Hookers Prairie. The reclamation of the Section 14 Area will involve the recreation of approximately 121 acres of herbaceous wetlands. This is approximately the same amount of herbeceous wetlands that were mined or disturbed in the Section 14 Area. In addition, 24 acres of forested wetlands will be created. This is approximately six times the number of area of forested wetlands that were in the Section 14 Area prior to mining operations. IMCF has had extensive experience in the reclamation of wetland systems in Florida. The company has reclaimed over 3,000 acres of wetlands over the last ten years. The company's experience includes the reclamation of both herbaceous wetland systems and forested wetland systems. With regard to the proposed mitigation, the primary issue at dispute in the hearing was whether IMCF can control the growth of nuisance species, such as cattail and primrose willow, in accordance with the Department's current policy. This policy, which will be implemented as a condition of any permit issued in this matter, is that nuisance species shall be limited to ten percent or less of the total cover or, if these species exceed ten percent of the total cover, their density must be declining over several years. IMCF would use several methods to limit the growth of nuisance species in the reclamation area. The company will flood the reclamation area immediately following recontouring. In addition, the company will assure that water levels are maintained in the project area throughout the vegetation period. These hydrological controls are designed to preclude seeds from nuisance species growing nearby from blowing into the area and propagating. These seeds will not propagate under water. In addition, the project area would be covered by a two-inch to six- inch layer of organic mulch material. The use of such organic material inhibits the growth of nuisance species. Finally, IMCF will plant desirable wetland species on a relatively dense basis; i.e., on three- to five-foot centers. When established, these desirable species are expected to quickly grow and outcompete any nuisance species that may enter the area. There is legitimate concern about the growth of nuisance species in the reclamation area and about the company's ability to eradicate or remove nuisance species if in fact the area does become invaded. There also is legitimate concern that the disturbance caused by the construction of the perimeter berm might induce the growth of a five to fifteen foot band of nuisance species outside of the Section 14 Area. Even if this occurred, it would not have a significant impact on the Hookers Prairie system, which already contains a large amount of "nuisance species." Finally, there is a concern whether nuisance species can be kept out of the ditch and berm area after the berm is leveled since there no longer would be hydrological controls in place. I am persuaded by the weight of the evidence presented in this matter that, with the following additional special permit conditions, IMCF has provided sufficient reasonable assurances to the Department that it will be able to successfully reclaim the Section 14 Area and to control nuisance species growth in accordance with applicable Department policy: that, in accordance with existing Department policy, the plant material used for revegetation for the reclamation project be plants that grew naturally within 50 miles of the reclamation site; that the elevations in the reclamation site be "fine-tuned" after recontouring but before removal of the ditch and berm to approximate existing elevations as closely as possible except when deviations from existing elevations might be desirable to better accomplish the goals of the reclamation project and reduce nuisance species; that, upon removal of the ditch and berm, all nuisance species (cattails and primrose willow) that may have invaded the perimeter band along the berm (see Finding 25, above) be removed and revegetation over the ditch and berm area be on two to four foot centers to aid competition with any invading nuisance species. Evaluation of Project Impacts Extensive testimonial and documentary evidence was presented at the hearing concerning a wide variety of potential impacts associated with the mining of the Section 14 Area. Potential impacts addressed included the impacts of mining and reclamation upon surface water and ground water quality, upon surface water flow conditions, and upon the availability of ground water for use as a portable water supply by the Bradley Junction residents. In addition, evidence was presented concerning potential impacts upon the Bradley Junction community in the form of fugitive dust, physical damage to structures in the community, and impacts associated with machinery noise generate during the mining and reclamation process. Surface Water Quality The perimeter berm and ditch system around the Section 14 Area will completely segregate the mining operations from the adjacent Hookers Prairie wetland system and the South Prong of the Alafia River. Therefore, the mining operations will not have a direct adverse impact upon the quality of surface water outside of the Section 14 Area. As noted in Findings Nos. 17(a) and 17(b), the temporary exclusion of just the Section 14 Area from the Western Hookers Prairie wetlands system will not have a significant adverse water quality impact. But, see "J. Cumulative Impact", below. Construction of the berm will not significantly affect dissolved oxygen levels in Hookers Prairie even in the areas immediately adjacent to the berm. Natural dissolved oxygen levels in the Hookers Prairie system are relatively low, and its waters are normally in a static or stagnated condition. (Construction of the berm probably will elevate dissolved oxygen levels in some areas near the berm by creation of small open water areas and lower levels in other areas where discarded plant material accumulates.) The weight of the evidence indicates that the construction of the berm will not cause a violation of state water quality standards outside of the Section 14 Area. During the reclamation process, water quality monitoring will take place and the resulting data will be presented to the Department. Upon Department approval, the reclaimed wetland system will be gradually reconnected to the natural Hookers Prairie system. The water quality in the Section 14 Area after reclamation will comply with applicable State water quality standards. Ground Water Quality Several residents of the Bradley Junction community have raised concerns about the quality of the water withdrawn from their portable water supply wells. While it does appear that water from certain of these wells may be of substandard quality, this condition is not a result of phosphate mining operations and will not be affected by the mining and reclamation of the Section 14 Area. The basis for this finding is: Mining in the Section 14 Area will take place in the surficial aquifer system. Portable water supply wells in the Bradley Junction community area draw water from the intermediate aquifer system. The intermediate aquifer system is separated from the surficial aquifer system by a thick, relatively impervious clay layer that significantly impedes the vertical flow of ground water. The Section 14 Area is located hydrologically downgradient from the Bradley Junction community. Any seepage from mining operations will move away from Bradley Junction, not toward that location. The quality of the water that will be found in the mine cuts and ditches in the Section 14 Area is very good and probably would not significantly adversely impact the quality of the portable water drawn from Bradley Junction water supply wells even if it were physically possible for the mining-related waters to reach the wells. The Polk County Public Health Unit of the Department of Health and Rehabilitative Services carried out a study of the quality of portable water in the Bradley Junction community. The study indicates that water from certain of the wells exhibit elevated levels of fecal coliform. The probable source of this contamination is improper sanitary conditions in the area near the well locations. There is no evidence to indicate that phosphate mining operations have any impact on the quality of the water in these wells. Surface Water Flow Conditions At this time, the construction of the berm and ditch system and the mining in the Section 14 Area will have only a minor impact on surface water flow conditions outside of the Section 14 Area. The proposed mining and reclamation project itself will not cause an increased likelihood of flooding in downstream areas nor will it cause increased erosion in the South Prong of the Alafia River. IMCF has applied for and received a "Works of the District" permit for the Section 14 Area from the Southwest Florida Water Management District, the state agency primarily responsible for evaluating the impact of construction activities on surface water flow conditions. But see "J. Cumulative Impact," below. Ground Water Availability The digging of mine cuts in the surficial aquifer can result in a drawdown or lowering of the water table in the surficial aquifer system. If controls were not employed by IMCF in connection with the mining of the Section 14 Area, the surficial aquifer in the area of the Bradley Junction community could be drawn down by as much as five feet below natural levels. IMCF has applied for and received a consumptive use permit from the Southwest Florida Water Management District, the state agency primarily responsible for regulating the use of ground water in the State of Florida. The consumptive use permit requires IMCF to maintain the water level in the surficial aquifer at historic levels taking into account the natural variations in the water table that occur during the year. IMCF will comply with the conditions of the consumptive use permit by the use of two positive control methods. The perimeter ditch surrounding the project site will serve as a hydrological barrier or recharge ditch that will maintain the surficial aquifer water levels at historic levels. In addition, during mining operations, the dragline will cast the removed overburden material against the face of the mine cut. This procedure will have the effect of sealing the face of the mine cut and inhibiting the flow of ground water from contiguous areas into the mine cut. In accordance with the consumptive use permit, IMCF will monitor water levels adjacent to the Section 14 Area to assure compliance with the drawdown restrictions. 1/ As noted in Finding No. 32(a), the portable water supply wells in the Bradley Junction community draw water from the intermediate aquifer system. Water levels in the intermediate aquifer system are not significantly affected by the water levels in the surficial aquifer. The two systems operate independently by virtue of the thick confining layer that separates them. Mining operations in the surficial aquifer in the Section 14 Area will have no effect on the water levels in the intermediate aquifer system underlying the Bradley Junction community. Therefore, the proposed mining operations will have no effect upon the availability of water in the Bradley Junction portable water supply wells. Dust Dragline operations and slurry pit operations are wet process activities that do not generally result in the emission of dust. Dust can be emitted as a result of vehicle travel on access roadways, by land clearing operations, and during reclamation activities especially in the dry season under high wind conditions. IMCF will control dust emissions from the Section 14 Area by use of water trucks to keep access roads moist. In addition, IMCF will curtail land clearing and reclamation operations during periods when high winds are prevailing in the direction of the Bradley Junction community. Physical Impact on Structures Certain residents of the Bradley Junction community have complained that nearby mining operations have caused physical damage to their homes. The evidence presented at the hearing, however, demonstrates that neither vibration caused by the equipment used in mining operations nor the construction of mine cuts will cause any adverse physical effects on nearby structures. The basis for this finding are as follows: Vibration measurements taken in the vicinity of the type of equipment that will be used in the Section 14 Area demonstrates that the vibration levels that will be experienced at the residences closest to the mining operations are far below the level that would cause any structural damage. These worse case conditions would be experienced at a point approximately 250 feet from the mining operations. It should be noted that these conditions will only occur when mining operations are taking place in upland areas outside of the Department's jurisdiction. Vibration impacts resulting from mining activities in the more distant jurisdictional wetland areas are even less significant. A slope stability analysis carried out by Dr. John Garlanger demonstrated that the construction of a mint cut at a distance no closer than 250 feet from a residence will cause no adverse impact on the structural integrity of the residence. This conclusion is underscored by the fact that the dragline, which is larger and heavier than the typical Bradley Junction home, will safely operate very near the edge of the mine cut without significant risk of slope collapse. Any current physical damage to structures in the Bradley Junction community is probably the result of age, water damage, improper site preparation, and other improper construction techniques. Noise Draglines, pumps, and other pieces of heavy equipment to be used in the mining and reclamation of the Section 14 Area will produce noise that is audible to, and will be annoying to, the people living near the project. None of the expected noise levels will exceed the guidelines established by the Federal Highway Administration ("FHA") for construction of highway projects near residential communities. The FHA guidelines require that noise levels may not exceed 70 decibels more than 10 percent of the time. Even in the worst case situation, which involves mining in the upland areas no closer than 250 feet from a residential structure, the expected noise levels will not exceed the FHA guidelines. When mining operations occur at more distant locations, the noise experienced in the Bradley Junction community will be proportionately reduced. The suggested United States Environmental Protection Agency noise level limitation is 55 decibels. At the 55-decibel level, there was scientific evidence that noise exposure resulted in irritability and sleep loss, but no actual hearing loss would occur. The 55 decibel EPA guideline is calculated differently than the FHA guidelines. The maximum levels expected to occur near the Section 14 Area based on the data collected by Mr. Nelson were essentially in compliance with the EPA recommendations. Furthermore, the predicted noise levels reflect outside noise levels. The noise levels inside the structures in the Bradley Junction community would be below the recommended EPA levels because of noise attenuation by the structure. The mining operations would have a reduced impact upon sleep because the company will not operate between the hours of 11 p.m. and 7 a.m. when close to the residences. Mining operations in the northernmost portion of the project will occur over a period of seven months. Reclamation in the immediate vicinity of the Bradley Junction community will be completed within six months following mining operations. The predicted worst case conditions during mining and reclamation will occur only over a few weeks with regard to any particular residence. These worst case conditions will occur in upland areas outside the Department's jurisdiction. Noise resulting from activities taking place within jurisdictional wetlands is at even lower levels. Polk County Ordinance. The governmental body primarily responsible for public health concerns such as dust, noise and vibration impact or structures is the local government, Polk County. Polk County has enacted a mining setback ordinance which is less restrictive than other nearby counties - - only 250' from the nearest residence versus 500' in Hillsborough County and 1000' in Manatee County. Under the Polk County ordinance, IMCF is able to mine as close to Bradley Junction residents as it proposes. Archeological Resources There are no significant historical or archeological resources in the Section 14 Area. Cumulative Impact Hooker's Prairie is a wetlands marsh system which comprises the headwaters of the South Prong of the Alafia River. The Section 14 project area is an integral part of the Prairie. Although IMCF's case thoroughly addressed all other issues raised by the opponents of the Section 14 project-- including noise, dust and even damage to structures from vibration-- its case conspicuously failed to as clearly address the question of cumulative impacts. It is not clear from the evidence if Hookers Prairie historically was 3000 acres, 3500 acres or some other size. Likewise, the current size of the Prairie, unmined and unsevered, also is unclear from the evidence. DER has issued five previous permits for phosphate mining in Hooker's Prairie. These permits are to W. R. Grace for approximately 1000 acres in the Eastern Prairie and IMCF for approximately 120 acres in the Western Prairie, including the recent IMCF Section 12 project involving mining and filling approximately 100 acres of Hooker's Prairie. It is not clear from the evidence how much of the 1000 acres already has been mined. DER's appraisal report, dated November 4, 1987, states that there has been recent mining in Section 18 in the Western Prairie. It points out that, as a result, cattails have intruded into Section 13 of the Prairie from the east. The report states that, aside from the Section 14 project area, there were then only 720 acres of wetland left in the Western Prairie, which has been almost blocked from the Eastern Prairie by mining activities, 620 in Section 13 and 100 in the west side of Section 7. It also states that almost 700 acres "in [the Section 14 project) area alone" were then permitted for mining. Although it is not clear, this appears to consist of 96 acres IMCF had under permit "in this immediate vicinity" and 580 acres of the Prairie to the east. It is not clear whether this acreage is in addition to, or part of, the acreage referred to in Finding 48, above. To date, no one has successfully restored mined wetlands in Hooker's Prairie. IMCF has restored a small, approximately 20 acre tract of wetland in the Western Prairie, but no success determination has yet been made. IMCF's approximately 100 acre restoration in Section 12 is underway. Efforts by Grace to restore mined wetland in the Eastern Prairie were delayed while Grace and DER negotiated an alternative to the original "land and lakes" restoration concept approved under the DER permits. A wetlands restoration concept finally having been agreed to, restoration now is underway. W. R. Grace has plans to mine the entire remaining wetlands of Hookers Prairie in the foreseeable future. Wetland restoration takes approximately two to four years. IMCF plans to mine in Section 14 from July, 1989, through December, 1991. Restoration is planned to take place through December, 1994. It may take longer. During part of this time period, IMCF's 120 acres of restoration in the Western Prairie still will not be functional. There was no evidence to suggest that the Grace wetlands restoration would be completed before IMCF plans to complete its Section 14 restoration project. There was no evidence as to when Grace is expected to complete any restoration of the 1000 acres it has under permit in the Eastern Prairie. The same would be true of any other parts of the wetlands that may be under permit. In light of the substantial, though undeterminable, reduction of the size of Hooker's Prairie from its historical size, the cumulative impact of removing an additional 131 acres of wetland from the system for approximately five or more years is significant. During this time, the size of functional wetland in the Prairie may be close to just half its historical size or even less. IMCF has not given reasonable assurances that the cumulative impact of the loss of another 131 acres of Hooker's Prairie for five or more years, combined with the recent reduction in the size of the functional wetland, will not be contrary to the public interest. Further phosphate mining in Hooker's Prairie should await successful restoration of wetlands in areas already under permit for mining operations.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Environmental Regulation deny the application of IMC Fertilizer, Inc., to mine for phosphate in Section 14, Hooker's Prairie, at this time. RECOMMENDED in Tallahassee, Florida this 14th day of February, 1989. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 14th day of February, 1989.
Findings Of Fact Respondent, Citra Mining, Inc. (Citra), owned a proprietary interest in at least 120 acres of property located in Sections 2 and 3, Township 13 South, Range 22 East, Marion County, Florida. This property lies within a natural surface water storage system known as Black Sink Prairie, an area of approximately 3,860 acres, consisting of wetlands interspersed with open bodies of water and hammocks. Respondent corporation no longer has any interest in the property in question, does not conduct any mining or other activity there, and may soon be dissolved. In late August 1981, R. Dirk Schmidt, Director of the Division of Enforcement in Petitioner's Department of Resource Management, visited Respondent's property in question here and saw Respondent's employees collecting limerock at a depth of 5 to 10 feet below the level of the adjacent land, removing it from the pit, and hauling it away in trucks. His survey of the area during this and subsequent visits revealed that Respondent had created a hole surrounded by various spoil piles and ditches (canals) and had enlarged spoil piles in the area which had existed prior to the commencement of its mining operation. The entire mine area treated this way was ultimately expanded to 87 (plus or minus) acres of the Respondent's property. The water which existed in the mine area was pumped out by Respondent and discharged onto property outside the Respondent's boundaries. At that time, because of drought conditions which had existed for several years, the water flow was sufficiently small that pumping was able to keep the mine site dry. However, since the drought was ended sometime in 1982, the mine area has been underwater and is that way at the present time. Material has been removed from the area by the Respondent's mining operation at depths from 1/2 foot to 8 feet. Of the total 87 (plus or minus) acres disturbed by Respondent, approximately 1.5 acres have been mined to a depth of below 48 feet MSL (the undisturbed marshlands range from wet marsh at 49.5 feet MSL to high marsh at up to 54 feet MSL), 21 acres mined to between 48 and 50 feet MSL, and 27.7 acres to between 50 and 52 feet MSL. An additional 22.5 acres have been only superficially scraped. If unrepaired, natural vegetation will ultimately produce communities appropriate to these elevations and those areas lying below 48 feet MSL will remain open water communities. On April 20, 1982, Respondent applied to Petitioner for a permit to mine limestone by dragline to a depth of 60 feet. The application indicated that no water consumption or discharge would be required. This application was subsequently withdrawn before being acted upon and has never been resubmitted. Consequently, all Respondent's activity in the area has been without permit. Palmer Kinser, an environmental zoologist and entomologist for Petitioner, on several occasions during late 1982, visited the Respondent's site in question for the purpose of examining and assessing the nature of the property, including both those areas impacted by Respondent's mining activity and those areas not impacted. In completing his assessment and in addition to his on-site evaluation, he utilized soil maps of the Soil Conservation Service, aerial photographs, and vegetation and land use maps developed by the Florida Department of Transportation. Be also collected samples from the area and, upon completion of his evaluation, concluded that the larger portion of the property in question was a wetland prior to the commencement of mining. Prior to 1976, all of the mining site, with the exception of several hammocks, was classified as freshwater marsh. However, because of extended drought conditions which existed between then and 1980, terrestrial and opportunistic woody species invaded the area. The soil maps of the area indicate that by far the greatest part of the area, including the mine site, consisted of basically three types of soil: Holopaw sand; Anclote sand; and Anclote-Tomoka Association; all of which are poorly drained soils and all of which are consistent with marsh areas. There are three types of wetland communities represented in the mine area: wet marsh communities on Anclote-Tomoka Association soils and on Anclote sand; high marsh and mixed hardwood forests on Holopaw sands; and in the uplands surrounding the site, Adamsville sands dominated by mixed hardwood forests. In late 1982, visits to the site showed relatively high water levels; and collected data on the area reveals that the water level, previously due to drought conditions, had been low enough for colonies of high ground varieties of plants to become established. However, the continuation of established colonies of drought-resistant marsh species indicates previously existing marsh wetlands during more normal conditions. Marshes play an important part in the ecological scheme of things, contributing to the primary productivity of wetlands and also being important in nutrient assimilation, sediment stabilization, secondary production, provision of habitat, maintenance of species diversity, and other like activities. For example, marsh vegetation helps channel nutrients into desirable production pathways and, by competition, assists in suppressing nuisance vegetation such as the water hyacinth and others. Plants trap and consolidate sediments and, in some cases, contribute to hydrosoils by the deterioration of their own bodies. Organisms in the marsh either are themselves a part of or contribute to the continuation of the food chain for wildlife species including waterfowl, marsh and shore birds, upland game birds, and wild mammals and fish. In substance, then, mining activities by Respondent at the site have either totally removed or substantially disrupted the vegetation on approximately 87 acres of wetlands with resultant damage to the plant and animal life located there. In addition, the extensive spoil deposits generated by the Respondent's unpermitted mining activity inhibit surface water flow, interfering with the periodic exchange of surface water between the mine site and the rest of the prairie. The steep and unstable slopes on the edges of many of the excavated areas are subject to erosion and are unsuitable for the establishment of beneficial vegetation. Most of the adverse impacts of Respondent's activity, as detailed above, can be mitigated and the area restored to ecologically productive status. To do this, it will be necessary to: Level the interior spoil piles and place the spoil into the scraped area, which should then be graded and contoured to an acceptable slope ratio; and Breach the perimeter spoil piles with 50-foot openings in three sepa rate designated areas and dispose of the spoil as outlined in (a) above.
Findings Of Fact Mr. Savino owns a parcel of land at the intersection of two mosquito control canals in Flagler County, Florida. The portion which he desires to fill is no higher than 0.5 feet above mean high water. It is flooded by the canals several times a year. In his original application to fill Mr. Savino said that he wanted to make his land suitable for the construction of two residential houses. Later, in response to a Department request for further information, he changed his plans for the filled area. He now intends it to be only the backyard of his residence. Prior to the time of the pending application, Mr. Savino had filled some of the same area involved here. Because he had no permit, an enforcement action was begun by the United States Corps of Engineers. As a result of that action part of the original fill was removed. The remainder of the fill is still in place and is within the scope of the pending application on an after- the-fact basis. 1/ The area projected to be filled is 6,000 square feet along the edge of the mosquito control canals. The fill would consist of 450 cubic yards of clay- type soil to be stabilized by planting Bahia or St. Augustine grass on it. This filling would raise the land level to an elevation of three feet along the immediate edge of the canals and two feet over the rest of the filled area. The fill would be placed in a band beginning five feet back from the water's edge and extending 50 feet landward. The project site is near Smith Creek and the Intercoastal Waterway. These are state waters into which the mosquito control canals flow directly. The surrounding area of the site consists of tidal lagoons, bayous and spoil islands which were created by the construction of the Intercoastal Waterway. The immediate fill site is covered by salt-tolerant vegetation which consists of salt grass (Distichlis spicata, marshhay cordgrass (Spartina patens), sea purslane (Sesuvium portulacastrum), marsh elder (Iva frutescens), saltwort (Batis maritima), glasswort (Salicornia virginica), and groundsel (Baccharis halimifolia). The foregoing species are the dominant plant community there. This vegetation is part of the Smith Creek salt marsh system which provides several benefits in terms of water quality. The transitional marshlands provide water filtration and nutrient uptake for runoff from the adjacent uplands. During periods of inundation they also provide both habitat and forage area for juvenile estuarine fish. Mr. Savino proposes to stabilize the fill by planting St. Augustine or Bahia grass. No showing was made, however, that the grass will grow on the fill which is on land periodically inundated by salt water. It is probable that there will be runoff from the fill into the mosquito control canals which will then convey suspended solids and man induced nutrients into Smith Creek and the Intercoastal waterway. Mr. Savino has not provided for a plan which will reasonably prevent that runoff. The receiving waters of Smith Creek and the Intercoastal Waterway are Class III waters. On April 1, 1980, the Department responded to Mr. Savino's fill application by issuing a notice of intent to deny it on the grounds that valuable transitional marshland would be destroyed and a degradation of local water quality would be expected. In reaching its conclusion the Department relied in part on Petitioner's earlier intention to build two residences on the filled site. He has not deleted that part of his plan. That deletion does not, however, remove the major objections by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a final order denying the application for Mr. Savino to fill in a transitional zone of state waters. 2/ DONE AND ENTERED this 22nd day of January 1981 in Tallahassee, Leon County, Florida. MICHAEL PEARCE DODSON 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 22nd day of January 1981.
Findings Of Fact The earthern dam sought to be removed is located adjacent to the Anclote River, a work of the District, and removal thereof will allow the discharge of waters into said river. Pursuant to Rule 16J-1.041, F.A.C., a permit is required for the removal of the earthen dam. The staff has opposed the granting of the permit on two grounds: The salt water flowing into the one acre pond would seep into the substrata, causing salt water intrusion in an area of declared water shortage; The use is not reasonable, beneficial, or in the public interest. There would undoubtedly be some salt water intrusion or more accurately seepage from the pond if it were connected to the Anclote River. The question is how detrimental would this be relative to the reasonableness of the request and its beneficial use. The pond in question has an area of one (1) acre. It is located in a sharp bend in the river and closely adjoins a similar naturally occurring inlet. U.S.G.S. Map Series 47, Figure 7 would indicate that the salt water intrusion in the area of the Anclote River approaches 50 feet below mean sea level, but is not continuous to the surface. Although Figure 6 was pointed out by the staff as depicting the hazards arising from salt water canals or ponds, it would indicate salt water from the surface down. However, Figure 6 would not appear to agree with the data depicted in Figure 7 which is specifically applicable to the area in question, the Anclote River. Further, Figure 9 of the same map shows that the Anclote River is during high flow periods a body of fresh water at the site in question at both high and low tides. Only during low flow periods is the Anclote River a body of salt water at this site. The staff did not quality the nature of flow or tide when its measurement of 6,600 parts per million was taken, however, it would appear to have been a low flow period from the US.G.S. data. The staff's representative expressed his opinion that such seepage would not be widespread, being contained on the surrounding property which is owned by the applicant. The staff has not presented any specific detriment which would result except its reference to Figure 6 and the commentary relative to it contained in Exhibit 4, U.S.G.S. Map Series 47. This generalization, however, is not applicable to the specific situation as represented in Figures 7, 8, and 9. The desire for a property owner to have access to a river is certainly reasonable, the use of such property is certainly beneficial and the economic benefit to a developer to offer such home sites is obvious. This benefit accrues to the public generally, as it has in this case, by the higher real property taxes accessed on such property. The availability of riverfront lots, the increased tax value, and the economic benefits arising fromsuch developments are in the public interest, not to mention the elimination of a potential body of polluted water. The detriment is added salt water intrusion from a one acre pond, which may occur according to the general hypothesis illustrated by Figure 6, which does not agree with the data specifically applicable to the area in question as illustrated in Exhibits 7, 8, and 9. The Hearing Officer finds that removal of the earthen dam is a reasonable and beneficial use which when weighed against the possibility of the adverse effect and the degree of that effect if it occurred is not inconsistent with the public interest.
Recommendation The Hearing Officer having considered the law and the facts recommends the permit be granted. DONE and ORDERED this 23rd day of February, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Counsel for SWFWMD Michael J. Ryan Post Office Box 3067 Holiday, Florida 33589 Robert L. Dreher 1721 Candlewood Drive Tarpon Springs, Florida 33589
Findings Of Fact The Hearing Officer's findings of fact in both the First Recommended Order and the Recommended Order As To Matters On Remand are accepted except as otherwise noted in either this Final Order After Remand or the First Final Order. The Florida Audubon has filed 80 pages of exceptions comprising 98 exceptions to findings of fact and 33 exceptions to conclusions of law. I have grouped these exceptions and ruled on them under the categories listed below. Scope of Remand and Hearing Officer's Preliminary Statement. Florida Audubon's Exceptions No. 1(A)-1(G), 2(A)-2(M), 3(A)-3(C), 4(A)- 4(B), 5(A)-5(C) and 9(A)(3) in whole or in part take exception to the Hearing Officer's preliminary statement of the background of the case and the scope of the issues on remand. My review of the record in this case leads me to conclude that the Hearing Officer's factual summary and statement of the issues on remand in her preliminary statement is an accurate and concise description of the background of this case and is based on matters of record and competent substantial evidence. Accordingly, I reject these exceptions. Furthermore, the Hearing Officer's preliminary statement comprises neither findings of fact nor conclusions of law. Therefore, a ruling on these exceptions is not actually required. 5/ Nature of the Proposed Development. Florida Audubon's Exceptions 8(A)-8(I) in whole or part take exception to the Hearing Officer's description in F.O.F. Nos. 1-9 of the nature of the proposed development. These exceptions do not assert that F.O.F. Nos. 1-9 are not supported in the record by competent substantial evidence. Rather, the gist of these exceptions is that the Hearing Officer overlooked or did not give proper weight to evidence that may suggest a contrary finding. It is well settled that where a Hearing Officer's finding of fact is supported in the record by competent, substantial evidence. I am not at liberty to reject or modify it. See e.g., Florida Dept. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Sections 120.57(1)(b)10., and 120.68(10), Florida Statutes. Nor may I reweigh the evidence considered by the Hearing Officer. Heifetz, supra. My review of the record shows that the Hearing Officer's F.O.F. Nos. 1-9 are supported in the record by competent, substantial evidence. The following summarizes F.O.F. Nos. 1-9 and the competent substantial evidence in the record which supports them. The proposed development on the island has been approved by the City of Naples and involves the refurbishment and expansion of existing Keewaydin Club facilities along with the construction of 42 single family homes within the city's jurisdictional boundaries. (F.O.F. No. 1: App. Remand Ex. 2). The Applicant is limited in its improvement of the Keewaydin Club facilities as follows: Construction must occur within the existing club property boundaries. A maintenance facility, firehouse, helipad and additional tennis courts are to be constructed. In addition, two buildings containing guest units and a building with 21 staff units can be built. Existing buildings can be remodeled to continue in their present functions and the clubhouse can be expanded by an additional 4,400 square feet. (F.O.F. No. 2: Stipulation of Respondents; DER Remand Ex. 2.). Marina expansion has been proposed by the Applicant, along with elevated walkways through jurisdictional wetlands, but are not essential to the proposed development. For purposes of consideration of secondary impacts the hearing on remand assumed that the marina expansion and walkways would be constructed so that the secondary impacts of the potential development could be considered during the current dredge and fill permit review. (F.O.F. No. 3: DER Remand Ex. 2; DER Remand Ex. A at 18-19). The 42 single family homes are planned for specific locations south of the club property. These homes will be on 15,000 square foot lots. It is anticipated that they will be landscaped with native vegetation and that residents will move around the island via golf carts on cart paths. (F.O.F. No. 4: App. Remand Ex. 2 at 1-1, 1-5, 1-16, 1-38, 2-7 to 2-9, and 5-2; App. Remand Ex. 11 at 6; Tr. at 413-15). Because the city has limited the planned development to the 42 residential units and the improvements to the club, both the Department of Natural Resources and South Florida Water Management District have approved permits specifically tailored to this development plan. (F.O.F. No. 5: App. Remand Exh. 2; App. Remand Ex. B at 6-10, App. Remand Ex. 11). The privately owned portion of the island cannot be developed further because of the city's approval conditions for this project. These two conditions are: (1) City Ordinance 89-5843 mandates all of the property in the land options involved with future development must be annexed into the city; and Once the property is annexed, the Applicant will give the city a conservation easement over 2,270 acres. This acreage is to be retained in its natural state and is expected to be maintained as suitable habitat for fish, plants and wildlife. (F.O.F. No. 6: App. Remand Ex. 2 at 1-3, 1-30; App. Remand Ex. 6; App. Remand Ex. 11; App. Remand Ex. A at 11-12). The City of Naples requires the developer to eliminate all septic tanks serving the Keewaydin Club as one if its conditions for approval of the current project. This has the potential to positively impact and improve current water quality on the island. (F.O.F. No. 7: Tr. at 317, 323-24; App. Remand Ex. D at 12; App. Remand Ex. F at 13 and 15; App. Remand Ex. 2). Specific measures have been proposed to minimize development impacts on the wildlife known to inhabit the island. Preservation of the osprey nest zone, upland gopher tortoise habitat, control of wheeled traffic on the beach, use of indirect lighting to avoid disorientation of baby atlantic loggerhead turtles as they hatch from nests, and trapping programs to control the raccoon population are prepared and ready for implementation. (F.O.F. No. 8: App. Remand Ex. 2; DER Remand Ex. A. at 22; DER Remand Ex. 2). The vast number of natural plant species on the island will be protected in designated areas. The preservation has been planned so representatives of species of interest will continue to thrive. (F.O.F. No. 9: App. Remand Ex. F at 16; DER Remand Ex. A at 22; DER Remand Ex. 2; App. Remand Ex. 2 at 1-25, 2-7, 2-16, and 2-17). Since the above findings of fact are supported in the record by competent substantial evidence, I can not disturb these findings of fact. I therefore reject the above noted exceptions. The MSSW Permit and Reasonable Assurance As To Water Quality. Florida Audubon's Exceptions No. 1(C)-1(F), 8(G)(3), 9(A), 9(I)(1)-(3) and 30(D) in whole or part take exception to the Hearing Officer's findings of fact and conclusions of law that the applicant has provided reasonable assurance that the project will not cause violations of water quality standards. (F.O.F. Nos. 10-20; Conclusion of Law No. 42). 6/ The gist of these exceptions is that the Department erred in relying on the assumption that in issuing its Management and Storage of Surface Water ("MSSW") permit, the South Florida Water Management District ("SFWMD") properly determined that the surface water management system for the island development provided reasonable assurance that the system would not result in violations of state water quality standards. There is competent substantial evidence in the record supporting the Hearing Officer's finding that the Department did not independently evaluate whether the development's surface water management system provided reasonable assurance that it would not violate state water quality standards. (F.O.F. No. 10; Dentzau, Tr. at 700-701, 712-13). It is therefore necessary to decide whether the Department properly relied on the MSSW permit for reasonable assurances that the surface water management system would not result in water quality violations, or whether the de novo hearing rendered the reliance moot in any event. Before the Department may issue a dredge and fill permit, it must determine that the applicant has provided reasonable assurances that the project, when considered with cumulative and secondary impacts, will not cause violations of water quality standards. Section 403.918(1), Florida Statutes. See also Conservancy v. A. Vernon Allen Builder, 580 So.2d 772 (Fla. 1st DCA 1991) and authorities cited therein. 7/ Where development is a secondary impact of a dredge and fill project, and the development will have a related surface water management system, the Department must also determine whether reasonable assurances have been provided that the surface water management system will not cause water quality violations. The first issue presented by this case is whether the Department may properly rely on a water management district's MSSW permit as the needed reasonable assurances, or whether the Department must "look behind" the water management district's MSSW permit and make a separate and independent evaluation of whether the necessary reasonable assurances have been provided. I note that in 1989 the Legislature enacted Ch. 89-279, Section 15, Laws of Florida, which created Section 373.418, Florida Statutes, providing in part that: It is the intent of the Legislature that stormwater management systems be regulated under this part [i.e., Part IV of Chapter 373] incorporating all of existing requirements contained in or adopted pursuant to Chapters 373 and 403. * * * (3) The department or governing boards may adopt such rules as are necessary to implement the provisions of this part. Such rules shall be consistent with state water policy and shall not allow harm to water resources or be contrary to the policy set forth in s. 373.016. The rules of SFWMD require that surface water management systems not cause violations of state water quality standards. Rule 40E-4.301(1)(c), Fla. Admin. Code. Also, State water policy requires that MSSW permits not cause violations of state water quality standards. Rule 17-40.420(3)(a), (b)1.a., Fla. Admin. Code. Although the Department is authorized to issue MSSW permits under section 373.418, it is the intent of Chapter 373 that Department powers be delegated to the water management districts to the greatest extent practicable. Section 373.016(3), Florida Statutes. The Legislature has ,thus established a scheme where strong preference is given to the regulation of surface water management systems by Water management districts through Chapter 373 MSSW permits. 8/ This scheme includes a mechanism in which the Department, the applicant, or a substantially affected person can petition the Land and Water Adjudicatory Commission for a determination of the validity of the permit. See Section 373.114, Florida Statutes. If the Department in the context of a Chapter 403 dredge and fill permit evaluation were to second guess and make an independent assessment of whether a surface water management system which had already received a water management district MSSW permit actually provided the necessary reasonable assurances, it could lead to a collateral attack on the validity of the MSSW permit and defeat the Legislative intent expressed in Sections 373.418 and 373.114, Florida Statutes. I therefore conclude that where an MSSW permit issuance by a water management district has become final, the Department may accept the MSSW permit as reasonable assurance that, as to the operation of the system within the scope of the dredge and fill permit, the surface water management system will not cause violations of state water quality standards. Of course, the Department will continue to make an independent determination of whether the remaining aspects of the project, taking into consideration cumulative and secondary impacts, provide the necessary reasonable assurances. I note that in this case the MSSW permit has not yet become final, as it is pending review before the Land and Water Adjudicatory Commission. 9/ A second issue raised is whether the de novo hearing rendered moot any question as to the propriety of the Department's reliance on the MSSW permit. I note that in the remand hearing in this case expert testimony was introduced to the effect that the development's management and storage of surface water system would not cause violations of state water quality standards. (App. Remand Ex. B, Prefiled Test. of Means at 6-12, 14-17.). Since this proceeding on remand is a de novo determination of the issues on remand, if there was any error by the Department in relying on the MSSW permit, it is moot because the Hearing Officer found that the necessary reasonable assurances were provided based on competent substantial evidence in the record. Since the Hearing Officer's finding that reasonable assurances have been provided is supported in the record by competent substantial evidence, I may not disturb it. Accordingly, the above noted exceptions are rejected. Reasonable Assurances As to Water Quality. Florida Audubon's Exceptions No. 1(C)-(F), 8(D)(2)-8(D)(3) , 8(E)(1), 8(F), 8(G)(1)-8(G)(3), 8(H) and 9(A)-9(K) in whole or in part take exception to the Hearing Officer's finding of fact that the Applicant has provided reasonable assurances that the proposed project, including the secondary impacts of the expected development, will not cause violations of water quality standards. (F.O.F. Nos. 10-20). Once again, Florida Audubon's exceptions do not assert the Hearing Officer's findings of fact are not supported in the record by competent substantial evidence, but essentially contend that the Hearing Officer did not give proper weight to what Florida Audubon contends is conflicting evidence. As I noted above, the standard which I must apply in ruling on exceptions to findings of fact is whether the Hearing Officer's findings of fact are supported in the record by competent substantial evidence. Florida Dept. of Corrections; Heifetz; supra. If I find any competent substantial evidence in the record to support a finding of fact I must accept the finding of fact even if there are contrary facts in the record and even if I would have weighed the facts differently. Heifetz, supra. 10/ As noted in Part III(3) above, the Department did not independently evaluate whether the design of the project's surface water management system provided reasonable assurance that the system would not violate state water quality standards. Rather, the Department relied on the issuance of the MSSW permit by the South Florida Water Management District. (F.O.F. No. 10; Dentzau, Tr. at 700-701, 712-713). Florida Audubon suggests that SFWMD did not in fact review the impact of the surface water management system on water quality, and that the Department's reliance on the MSSW permit precludes a finding that the Applicant has provided reasonable assurances that the project will not violate water quality standards. I disagree for the reasons stated in Part III(3) above. In particular, I note that the record on remand contains competent substantial evidence that the surface water management system will not result in violations of water quality standards. (App. Remand Ex. B, Prefiled Test. of Means at 6-12, 14-17). This proceeding on remand is a de novo determination of whether reasonable assurances have been provided that the project, taking into consideration the expected development of the island, will not result in violations of water quality standards. Therefore, regardless of whether the Department initially erred in relying on the MSSW permit, any error has been rendered moot by this de novo proceeding on remand in which the Applicant introduced competent substantial evidence that reasonable assurances have been provided that the stormwater management system will not cause violations of water quality standards. As to F.O.F. Nos. 11-20, the following summarizes the findings of fact and the competent substantial evidence in the record supporting them. In its review of the proposed development the Department identified several areas of potential adverse water quality impacts. Specifically, the Department investigated impacts from a potential marina expansion; the creation of all planned cart paths, proposed house pad construction, boardwalk and canoe launches, exempt docks, and beach renourishment. (F.O.F. No. 11: DER Remand Ex. 2; DER Remand Ex. A, Prefiled Test. of Dentzau at 7-9, 11-25; DER Remand Ex. B, Prefiled Test. of Llewellyn at 5-13). The marina expansion, boardwalks, and canoe launches will impact existing jurisdictional mangroves, thereby affecting water quality. If later permitted, however, the Applicant can reasonably minimize such impacts and offset them in a suitable fashion. (F.O.F. No. 12: DER Remand Ex. A, Prefiled Test. of Dentzau at 20-21; DER Remand Ex. 2). 11/ The primary impacts from exempt docks are minimized by the development plan. The secondary potential impacts are negligible. (F.O.F. No. 13: DER Remand Ex. A, Prefiled Test. of Dentzau at 20-21; DER Remand Ex. 2). The cart paths will not be paved. Urban runoff from these surfaces will have an insignificant quantity of pollutants that are accounted for in the surface water management system design. (F.O.F. No. 14: App. Remand Ex. F, Prefiled Test. of McWilliams at 14; Applicant's Remand Ex. B, Prefiled Test. of Means at 6-12, 16; Applicant's Remand Ex. D, Prefiled Test. of Missimer at 11). The secondary impacts from the house pad construction and the urban runoff from associated impervious surfaces are minimal. Nevertheless, they are accounted for in the surface water management system design. (F.O.F. No. 15: Applicant's Remand Ex. 2 at 1-16, 5-2; App. Remand Ex. B, Prefiled Test. of Means at 6-10; App. Remand Ex. D, Prefiled Test. of Missimer at 11-12; App. Remand Ex. F, Prefiled Test. of McWilliams at 13-14). The agreements entered into between the Applicant, the City of Naples, and the Department of Natural Resources prohibit any additional shore hardening. The beach management plan includes periodic beach renourishment. (F.O.F. No. 16: DER Remand Ex. A, Prefiled Test. of Dentzau at 16; App. Remand Ex. 11; App. Remand Ex. E at 10, Prefiled Test. of Stephen at 10; Tr. at 368-369). A review of the surface water management plan presented at the remand hearing reveals that the potential for adverse secondary impacts is significantly limited due to the low density and minimal infrastructure for the proposed development. The 42 new homes will be spread over 430 acres. A series of swales, collection ponds and surface water treatment areas have been designed to minimize the impacts of development on the surface water. The use of fertilizer or pesticides by residents will be strictly limited. (F.O.F. No. 17: App. Remand Ex. B, Prefiled Test. of Means at 6-10; App. Remand Ex. D, Prefiled Test. of Missimer at 11-12; App. Remand Ex. F, Prefiled Test. of McWilliams at 12-19; App. Remand Ex. 6). The surface water management system meets the Department's water quality standards. (F.O.F. No. 18: App. Remand Ex. B, Prefiled Test. of Means at 6-14; App. Remand Ex. 6; Tr. at 185-89, 197-215). Potable water is already conveyed to the island from the city. Once the septic tanks are removed, the overall affect of the planned development on ground water will be negligible. (F.O.F. No. 19: DER Remand Ex. 2; DER Remand Ex. A, Prefiled Test. of Dentzau at 16, 23-24). I conclude that the Hearing Officer's F.O.F. Nos. 10-20 are supported in the record by competent substantial evidence and therefore I will not disturb them. Accordingly, the above noted exceptions are rejected. Reasonable Assurances As to Public Interest Test. Florida Audubon's Exceptions No. 10(A)-10(O)(2) in whole or in part take exception to the Hearing Officer's findings of fact that reasonable assurances have been provided that the proposed project, taking into consideration the cumulative and secondary impacts, is not contrary to the public interest. (F.O.F. Nos. 21-34). As with the previous exceptions, Florida Audubon is essentially arguing that the Hearing Officer improperly weighed the evidence. My task is to determine whether the Hearing Officer's findings of fact are supported in the record by competent substantial evidence. If they are, I may not reject them. The following summarizes F.O.F. Nos. 22-33 and the competent substantial evidence in the record supporting them. All new construction is required to meet flood protection standards even though the owners will not be eligible for flood insurance. Home construction standards take into consideration many of the effects of hurricanes. (F.O.F. No. 22: App. Remand Ex. 2: App. Remand Ex. F at 15). The hurricane evacuation plan has been approved by the city and Collier County emergency management authorities. (F.O.F. No. 23: App. Remand Ex. 2 at Ib, 1-29; App. Remand Ex. A at 17-21). Public funds are protected as the proposed development is not dependent upon federal, state or local funding or insurance. The city has passed an ordinance that requires property owners to acknowledge that the city has no liability for rebuilding any damaged infrastructure or improvements. The monetary risk associated with the development will be borne by the developer and the residents. (F.O.F. No. 24: App. Remand Ex. 2 at 1-3 to 1-8). The 42 single family homes will be located within the island's Coastal Barrier Resources Act (CBRA) unit boundaries. The evidence adduced at hearing indicated that the CBRA designation will not be jeopardized by the proposed development. (F.O.F. No. 25: Tr. at 106-7; App. Remand Ex. A at 21-33; App. Remand Ex. 3; App. Remand Ex. 4; App. Remand Ex. E at 16). The proposed development will have negligible secondary impacts on fish and wildlife. The project protects or enhances various fish and wildlife habitats. All wetlands will be preserved. The beach dune system will be improved through removal of exotics and dune restoration. As a result, the interdependence of the estuarine area on the coastal barrier resource will not be adversely affected by the project. (F.O.F. No. 26: DER Remand Ex. A at 15- 16; App. Remand Ex. E at 19; App. Remand Ex. F at 10, 13-14, 15-16; Tr. at 414, 825-26, 829-30). Gopher tortoises will be relocated to an upland preserve on the same island. The removal of exotic plants, the introduction of native herbaceous plants and control of the raccoon population should positively effect the gopher tortoise population. (F.O.F. No. 27: DER Remand Ex. 2; DER Remand Ex. A at 21- 22; App. Remand Ex. F at 15-16; Tr. at 855-60). Indirect lighting and the reduction of raccoons should benefit the atlantic loggerhead turtle population. (F.O.F. No. 28: DER Remand Ex. 2; DER Remand Ex. A at 22; App. Remand Ex. 2). Threatened or endangered plant species on the site include golden leather fern, assorted orchids and bromeliads, golden polypody fern, shoestring fern and prickly pear cactus. Representatives of these species will be protected in preserve areas, according to conditions in the development plan approved by the city and conditions established in other permits. (F.O.F. No. 29: DER Remand Ex. 2; DER Remand Ex. A at 22; App. Remand Ex. F at 16). The proposed project preserves all identified habitats which contribute to marine productivity. Low density development and other limitations already placed on the project were designed to minimize the adverse impacts on fishing and marine productivity. Recreational values will be enhanced by the project because of the proposed canoe launches and habitat restoration. (F.O.F. No. 30: App. Remand Ex. F at 16). The development is permanent in nature. Design limitations on the project, existing permit conditions and the low density aspect of the development combine to assure that the project has limited adverse impacts. (F.O.F. No. 31: App. Remand Ex. 2; App. Remand Ex. F at 17-18; Tr. at 872-73). There will be no adverse impacts on historical or archaeological resources. The Caloosa Indian Midden located on the property is to be preserved undisturbed. The Keewaydin Club Lodge is a designated structure on the National Historical Register and will be maintained as a historical building. (F.O.F. No. 32: DER Remand Ex. 2; DER Remand Ex. A at 22; App. Remand Ex. A at 16-17). Except for the creation of 42 single home residencies for people willing to spend a million dollars for a home on an island with access only by boat or helicopter and all monetary risk for infrastructure and improvements damaged by any cause, the current condition of the island will not be changed significantly. All high quality resources and their functions have been preserved by project design. (F.O.F. No. 33: App. Remand Ex. F at 17-18; Tr. at 872-73). The above findings of fact which are supported in the record by competent substantial evidence support the Hearing Officer's F.O.F. No. 21 that the project will not adversely affect public health, safety or welfare or the property of others. Since the above noted findings of fact are supported in the record by competent substantial evidence, I shall not disturb them and the above noted exceptions are therefore rejected. However, as to the Hearing Officer's "finding" that the project is not contrary to the public interest, this is ultimately a conclusion of law for which I have the final authority and responsibility to determine. 1800 Atlantic Developers v. Depart. of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990); Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2d DCA 1991), rev. den. 583 So.2d 1035 (Fla. 1991). Although the factors found in the Hearing Officer's F.O.F. Nos. 26-30 help alleviate the adverse impacts of the project, when I balance the public interest criteria I conclude that the project would be contrary to the public interest without the mitigation offered by the preservation conservation easement to be placed over 2,270 acres. When I take the mitigation into consideration, I conclude that the project, taking into consideration the cumulative and secondary impacts, is not contrary to the public interest. Barrier Island -- Executive Order 81-105 and Designation Under The Federal Coastal Barrier Island Resources Act (CBRA). Florida Audubon's Exceptions No. 1(G), 3(A)-3(C), 5(A), 8(D)(1), 8(E)(1), 9(A)(3), 9(B)-9(D), 10(E)(1) (3), 10(J) 10(N)(3), 17 (A)-17(D), 21, 22, 24 and 25 in whole or in part take exception to the Hearing Officer's finding of fact that the federal Coastal Barrier Resources Act (CBRA) designation of Keewaydin Island will not be jeopardized by the proposed development (F.O.F. No. 25) and to the Hearing Officer's conclusion of law that the development is not prevented by Governor Graham's Executive Order No. 81-105. (C.O.L. No. 43). My review of the record shows that competent substantial evidence was admitted supporting the fact that Keewaydin Island's Coastal Barrier Resource System ("CBRS") unit designation does not prohibit the development of Keewaydin Island. It just precludes federal funds to facilitate such development. Therefore, that development would not jeopardize the CBRS unit designation. (App. Remand Ex. 3; App. Remand Ex. 4; App. Remand Ex. A at 21-23; App. Remand Ex. E at 16; Tr. at 106-107) Accordingly, I shall not disturb this finding of fact. Although I note that Executive Order No. 81-105 may have some weight in the balancing of the public interest criteria under Section 403.918(2), Florida Statutes, I concur with the Hearing Officer's conclusion of law that Executive Order No. 81-105 does not per se preclude the development of coastal barrier islands where government funds will not be used to create the infrastructure that promotes development on the barrier island. In view of the above, the above noted exceptions are rejected. Exceptions Lacking Particularity. Florida Audubon Exceptions No. 6 and 7 lack sufficient particularity. Rule 17-103.200(1), Fla. Admin. Code, provides in part: Exceptions shall state with particularity the basis for asserting that the Hearing Officer erred in making or omitting specific findings of fact, conclusions of law, or a recommendation ... The reason for the above requirement is clear. It is impossible for the parties to respond, or for me to rule, when the basis for a purported error is not clearly stated. Exceptions No. 6 and 7 fail to state how the Hearing Officer has erred in a finding of fact, conclusion of law, or recommendation. Such exceptions do not comply with Rule 17-103.200(1), Fla. Admin. Code, and therefore must be rejected. For this reason, I reject these exceptions. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW The Hearing Officer's conclusions of law in both the First Recommended Order and the Recommended Order As To Matters On Remand are accepted except as otherwise noted in either this Final Order After Remand or the First Final Order as modified by the court's opinion in Conservancy v. A. Vernon Allen, Builder, supra. Scope of Remand. Florida Audubon's Exceptions No. 11-14 in whole or in part take exception to the Hearing Officer's Conclusions of Law No. 36-39. The gist of these exceptions is that the Hearing Officer misconstrued the scope of the remand and consequently lacked jurisdiction. There is no merit in the contention that the Hearing Officer lacked jurisdiction. Jurisdiction was conferred by the court's mandate that the matter be remanded to the Division of Administrative Hearings for further proceedings consistent with the court's opinion. See Conservancy v. A. Vernon Allen Builder, 580 So.2d 772 (Fla. 1st DCA 1991). Nor do I agree that the Hearing Officer misconstrued the scope of remand. The opinion of First District Court of Appeal stated: In the instant case, we disagree with appellee that the contemplated development of 75 estate homes is speculative and is not closely linked or causally related to the proposed dredging and filling. We perceive there to be little difference between the Department's aforestated need to "consider what will be at the end of the bridge or road," and the necessity here to consider what will be at the end of the pipeline, especially when the evidence, proffered or admitted, suggests that the development enabled by the dredge and fill permit could have devastating environmental impacts. Such evidence would be highly relevant to the Department's consideration of whether the applicant has carried its burden of giving reasonable assurances under section 403.918 that water quality standards will not be violated and the project is not contrary to the public interest. Thus, the Department's consideration of the proposed development solely in relation to the design of the pipeline system itself neglected the necessity in this case to consider potential secondary impacts. Consequently, it was error for the Hearing Officer to exclude the evidence proffered by appellants for the reasons set forth in her recommended order. Accordingly, this cause must be reversed and remanded for further proceedings and re-evaluation of the proffered evidence in a manner consistent with this opinion. 12/ Conservancy v. A. Vernon Allen Builder, 580 So.2d at 779 (quoting McCormick v. City of Jacksonville, (12 FALR 980, 981 (DER Final Order, Jan. 22, 1990); footnote omitted). I conclude that the Hearing Officer properly construed the scope of remand to require the consideration of "the secondary impacts associated with the development of Key Island, which the Court determined were closely linked and causally related to the proposed permit." (R.O.R., C.O.L. No. 37) I also note that this administrative proceeding on remand is a de novo determination of the issue of the secondary impacts, and that Florida Audubon has fully participated and submitted testimony and evidence on the issue of the secondary impacts. I therefore conclude that the administrative hearing fully complied with the scope of remand, and accordingly reject the above noted exceptions. Reasonable Assurances As To Water Quality. Exceptions No. 14, 15(A)-15(C), 16, 18, 24 and 30(D) in whole or part take exception to the Hearing Officer's conclusions of law that reasonable assurances have been provided that the project and its cumulative and secondary impacts will not cause violations of water quality standards. (C.O.L. Nos. 40, 41, 42). Based on the Hearing Officer's findings of fact which I have accepted, I conclude that the project, taking into consideration cumulative and secondary impacts, provides reasonable assurance that water quality standards will not be violated. I therefore reject the above noted exceptions. Reasonable Assurances As To The Public Interest Test. Florida Audubon's Exceptions No. 15(A)-15(C), 16, 17, 18, and 21-24 take exception to the Hearing Officer's conclusions of law that reasonable assurance has been provided that the project together with its cumulative and secondary impacts are not contrary to the public interest. (C.O.L. No. 43) As I noted above, the determination of whether reasonable assurances have been provided as to the public interest test is ultimately a conclusion of law for which I have the final authority and responsibility to determine. 1800 Atlantic Developers v. Depart. of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990). Based on the Hearing Officer's findings of fact which I have accepted, I conclude that the project, taking into consideration the cumulative and secondary impacts and the offered mitigation of the preservation conservation easement over 2,270 acres, has provided reasonable assurance that the project is not contrary to the public interest. Therefore the above noted exceptions are rejected. Barrier Island -- Executive Order 81-105 and Designation Under The Federal Coastal Barrier Island Resources Act (CBRA). Florida Audubon's Exceptions No. 17(A)-(D), 21, 22, 24 and 25 in whole or in part take exception to the Hearing Officer's conclusions of law that Executive Order No. 81-105 and the Federal Coastal Barrier Island Resource Act do not preclude the proposed development on Keewaydin Island. Based on the Hearing Officer's findings of fact which I have accepted, and for the reasons stated in Part III(6) above, I concur with the Hearing Officer's conclusions of law and reject the above noted exceptions. Evidentiary Issues Official Recognition of Hurricane Andrew and Amendment to Rule 28-21.003 Florida Audubon's Exceptions No. 25, 30(A)-30(C) do not take exception to any specific finding of fact or conclusion of law. Rule 17-103.200(1) requires rulings only to exceptions to findings of fact, conclusions of law or recommendations. Although lacking in specificity, these exceptions apparently assert that the Hearing Officer erred in an implied conclusion of law when she declined to take official recognition of (1) an amendment to Department of Natural Resources Rule 18-21.003 relating to leases or consent to uses of sovereign submerged lands incident to the development of undeveloped coastal barrier islands, and (2) the effects of Hurricane Andrew on Keewaydin Island. The Hearing Officer, relying on the authority of Collier Medical Center v. Department of Health and Rehabilitative Services, 462 So.2d 83, 86 (Fla. 1st DCA 1985), denied these motions on the ground that the evidentiary hearing had ended. I note that the decision to give official recognition, like judicial notice, lies in the discretion of the Hearing Officer. See ., Huff v. State, 495 So.2d 145, 151 (Fla. 1986)("It is upon the wisdom and discretion of the judges of our courts that the doctrine of judicial notice must rest."). Even assuming that the Hearing Officer's decision to deny official recognition is an implied conclusion of law to which an exception is appropriately made, I cannot say that I believe the Hearing Officer abused her discretion in declining to take the requested official recognition. Florida Audubon has suggested no competent substantial evidence in the record which would be a basis for determining whether the amended Rule 18-21.003 would be applicable to the proposed development on Keewaydin Island. Furthermore, even if the rule was applicable to Keewaydin Island, the effect of the rule would be relevant to the necessary permit, easement or consent to use from the Board of Trustees of the Internal Improvement Trust Fund. The Department's permit does not remove the applicant's need for a Board of Trustees permit over sovereign submerged lands. 13/ As to the request for official recognition of Hurricane Andrew, it cannot be said that it is generally known and not subject to dispute how Hurricane Andrew would have effected Keewaydin Island if the proposed project has been in place. Therefore official recognition of Hurricane Andrew is neither appropriate nor material for the purposes sought by Florida Audubon. Accordingly, I conclude that the Hearing Officer did not abuse her discretion in denying official recognition. I therefore reject the above noted exceptions. Official Recognition of Facts In the MSSW Permit Proceeding Before SFWMD. Florida Audubon's Exception No. 27, although lacking in specificity, appears to be taking exception to the Hearing Officer's implicit denial of taking official recognition of facts in the administrative proceedings of another case, i.e., the MSSW permit proceedings before the SFWMD. Apparently Florida Audubon is contending that the Hearing Officer erred in not taking official recognition of Florida Audubon's assertion that the SFWMD did not consider impacts on water quality when it issued the MSSW permit. As I noted in my discussion in Parts III(3) and III(4) above, the Department may properly rely on the issuance of an MSSW permit as reasonable assurance that the surface water management system will not cause violations of water quality standards. Regardless of whether the SFWMD properly considered water quality impacts when it issued the MSSW permit, in this case the issue is moot because a de novo proceeding was held where the record contains competent substantial evidence that the surface water management system provides reasonable assurance that the system will not cause violations of water quality standards. This exception is therefore rejected. Miscellaneous Exceptions. Exception 13 takes exception to the Hearing Officer's C.O.L. No. 38 describing the nature of the proffers made in the previous hearing. Since the hearing on remand was a de novo hearing on the issue of secondary impacts of the island development in which Florida Audubon presented all of its evidence related to the issue, I find no error that is relevant or material to this proceeding. Exception 13 is therefore rejected. Exception 14 takes exception to the Hearing Officer's C.O.L. No. 39 holding that the Department acted in good faith in its pre-hearing review of the information regarding the development. Once again, since the hearing was a de novo proceeding to establish the secondary impacts of the development I find no relevant or material error. Exception 14 is therefore rejected. Exceptions No. 19(A)-19(C) take exception to the Hearing Officer's C.O.L. No. 45, which concluded that the Department witnesses who disagreed with the proposed project did not apply the tests set forth in the statutes as did the Department witnesses who actually made the initial determination of whether the permit should issue. This exception also looses sight of the fact that this remand proceeding is a de novo determination of the facts. Florida Audubon presented witnesses who opposed the permit, and the Applicant presented witnesses and evidence in favor of the permit. The Department presented witnesses as to the Department's initial determination of the matter. I find no error and reject the exception. Exceptions 20(A) to 20(C) taking exception to the Hearing Officer's recommendations. These exceptions essentially are attacks on the Hearing Officer's findings of fact and conclusions of law as to reasonable assurances. The exceptions are denied for the same reasons stated in Parts III(3), (4) and (5) and IV(2) and (3). Exceptions 28 and 29 take exception to the Hearing Officer's acceptance of proposed findings of fact in the proposed recommended orders of the Applicant and the Department. These exceptions are redundant and are rejected for the same reasons stated in Parts III and IV(1)-(5) above.
Recommendation Based upon the foregoing, it is RECOMMENDED: That a Final Order be entered approving Respondent Builders' dredge and fill permit in DER File No. 111486645 filed August 31, 1988, subject to the following modifications: Specific condition number 6 should be amended to read: 6. Dredging shall be done by mechanical means (no hydraulic dredging) as there does not appear to be an appropriate area for discharge retention available. No dredging shall be allowed during the weeks of July 1st through September 30th of any year. If rock is encountered during the dredging activity along the proposed pipeline corridor, the rock is to be punctured by mechanical means. DONE and ENTERED this 7th day of December, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1989. APPENDIX TO RECOMMENDED ORDER Rulings on the proposed findings of fact filed by Petitioners are addressed as follows: Accept that John Remington holds the option on the property. See HO #1. Reject the rest of paragraph 1 as contrary to fact. See HO #6. Accept the description of the project locale. See HO #7. The rest is rejected as irrelevant. Outside scope of hearing. Accepted. See HO #7. Accepted. See HO #7. Rejected. Irrelevant. Outside scope of hearing. Rejected. Irrelevant. Outside scope of hearing. Rejected. Irrelevant. Outside scope of hearing. Accepted. Accepted. Rejected. Argumentative. Rejected. Improper summary. Irrelevant. Accepted. See Ho #2. Accepted. See Preliminary Matters. Rejected. Improper summary. Rejected. Immaterial. Accepted. Rejejcted. Improper summary. Accepted. Rejected. Immaterial. Rejected. Legal argument. Rejected. Beyond the reasonable assurances standards. Accepted as a reasonable possibility. See HO #11. Accept the first sentence. See HO #11. The rest is rejected as argumentative. Accept as a fact summary. The assumption portion is rejected as argumentative. Rejected. Premature analysis of future sewer treatment plant permit. Accept first sentence. The rest is rejected as argumentative and beyond scope of hearing. Accepted. Accepted to the point that such information could be known, based upon the methods used to form the opinion. Rejected. Argumentative. Respondent Builders' proposed findings of fact are addressed as follows: Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #2. Accepted. Accepted. See HO #7. Accepted. See HO #10. Accepted. See HO #7 and #9. Accepted. See HO #11. Accepted. See HO #8. Accepted. See HO #21. Rejected, except that there is no evidence of scour activity. There was insufficient evidence for the conclusion that the pass is very stable. Accepted. See HO #7. Accepted. See HO #4. Accepted. See HO #13. Accepted. See HO #21. Accepted. Rejected. Premature in this proceeding. Accepted. See HO #16 and #17. Accepted that reasonable assurances provided. See HO #11 and #16. Accepted. See HO #33. Accepted. See HO #13 through #16. Accepted. See HO #16 and #17. Accepted. Rejected. Repetitive. Accepted. See HO #31. Accepted. See HO #18. Rejected. Contrary to fact. See HO #21 and #29. Accepted. See HO #23-#25. Rejected. Contrary to fact. See HO #21, #22 and #29. Accepted. See HO #30. Accepted. Accepted. Respondent DER's proposed findings of fact are addressed as follows: Accepted. See HO #4 and HO #7. Accepted. See HO #5. Rejected. Contrary to fact. See HO #4. Accepted. See HO #4. Accepted. See HO #15. Accepted. See HO #16. Rejected. Contrary to fact. See HO #8. Accepted. Rejected. Conclusionary. See HO #21 and #29. Accepted. See HO #9. Accepted. See HO #10. Accepted. See HO #23. Accepted. Rejected. Contrary to fact. See HO #22. Accepted. See HO #22. Accepted. See HO #16. Accepted. Accepted. Accepted. See HO #13. Rejected. Speculative. Accepted. See HO #16. Accepted. Rejected. Speculative. Accepted. See HO #17. Accepted. See HO #5. Accepted. See HO #6. Rejected. Outside of scope of hearing. COPIES FURNISHED: Joseph Z. Fleming, Esquire 620 Ingraham Building 25 Southeast Second Avenue Miami, Florida 33131 Terry E. Lewis, Esquire Kevin S. Hennessy, Esquire MESSER VICKERS CAPARELLO FRENCH AND MADSEN Suite 301 2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Richard Grosso, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 =================================================================
Findings Of Fact The Hearing Officer finds that if this request was approved, and pumpage reduced at the old wells to 1.5 MGD that together with the 1 MGD well New Port Richey would have permits totaling 6.5 MGD. Considering a service area population of 20,000 people, this would be 300 gallons of water per person per day in the service area, or over two (2) time1s the generally accepted per capita usage. While the Hearing Officer recognizes the desirability of shifting the water sources for the coastal area further inland and the desirability for the City to have emergency water pumping capacity, the per capita quantities involved in New Port Richey total water resource program are out of line and are unjustifiable in light of current and even projected needs within the 3.5 year period of this permit. Many solutions exist to emergency pumping, not the least of which is installation of gas or diesel anxillary pumps at least one of the Starkey wells. The Hearing Officer would note that salt water intrusion is an important basis for approval of the Starkey Well Field applications, and that pumping 1.5 MGD from the old wells will not allow the full benefit to the coastal water supply to be achieved. Continued salt water intrusion will work a hardship on all well owners in the New Port Richey area. The Hearing Officer is also aware, having heard the case, of the application of the 1 MGD well at Starkey Well Field. Part of the justification for approval of that application was that it would be used to meet peak demands when this instant application was approved. (See Hearing Officer's Recommended Order dated August 5, 1976.) Together with the old wells, this would provide 2.5 MGD for peak usage, or an amount equal to the daily per capita needs for 20,000 people, over and above the 4 MGD requested in this application. The Hearing Officer further notes that an objection to this current application was filed in behalf of an adjacent landowner. There is no indication within the file provided the Hearing Officer that this landowner received notice of the instant hearing by letter or publication.
Recommendation The Hearing Officer having considered the law and the evidence recommends the denial of this application, and further, in the absence of any proof of notice to the objecting adjacent landowner, the Hearing Officer recommends that the Board permit him to present any evidence which he feels is relevant at its consideration of this application. DONE and ORDERED this 27th day of February, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Counsel for SWFWMD Jack B. McPherson Esquire Counsel for City of New Port Richey
