The Issue The issue is whether Respondent Win-Suncoast, Ltd., is entitled to an individual environmental resource permit to construct a surface water management system to serve a proposed shopping center.
Findings Of Fact On April 25, 2006, Applicant filed with District an application for an individual ERP to construct a surface water management system on a parcel located in south Pasco County on the north side of State Road 54, about 1000 feet east of the right-of-way of the Suncoast Parkway. The proposed surface water management system would serve the commercial development of the now-vacant, 36.7-acre parcel. State Road 54 runs from State Road 19 near New Port Richey to Interstate 75; at the Suncoast Parkway, State Road 54 is six lanes wide. The Suncoast Parkway is a limited-access toll road that runs from Memorial Parkway in Tampa to U.S. Route 98 north of Brooksville. The subject parcel is about one mile north of Hillsborough County, four miles east of the terminus of Gunn Highway at State Road 54, and five miles west of State Road The vicinity of this intersection is experiencing rapid commercial development and escalating land values, mostly since the completion of the Suncoast Parkway in 2001. Three parcels adjoin the subject parcel. Immediately north of the subject parcel is the Ashley Glen parcel, which consists of 266.36 acres. Immediately west of the subject parcel and the Ashley Glen parcel is the parcel owned by Petitioner. Petitioner's parcel has about 700 feet of frontage on State Road 54 and runs the length of the western borders of the subject parcel and the Ashley Glen parcel. The northern border of Petitioner's parcel and the Ashley Glen parcel is an abandoned railroad grade. Immediately east of the subject parcel is a DOT-owned parcel, which serves as floodplain mitigation, probably in connection with the Suncoast Parkway or State Road 54. Petitioner challenged the issuance of an ERP in two administrative cases involving the Ashley Glen parcel. In the Blanco I final order, which is dated January 25, 2005, the District denied an ERP for a surface water management system to serve the development of a residential subdivision of over 400 lots. The ERP was denied due to the applicant's failure to conduct an appropriate wildlife survey and to account for the effect of a newly excavated 37-acre borrow pit/pond on a large forested wetland partly occupying a large area on the north end of Petitioner's property. After the developer submitted a revised application, Petitioner challenged the ERP that District proposed to issue. After an administrative hearing, District granted an ERP in the Blanco II final order, which is dated May 30, 2006. Significant differences in the second application were that the applicant had reduced the maximum depth of the borrow pit/pond from 25 feet to 12 feet, under most circumstances, and that the applicant had obtained an appropriate wildlife survey. The subject parcel is about 1.5 miles south of a large tract proposed for acquisition by District and known as the Masaryktown Canal area. This tract would join the smaller Starkey tract, which is also owned by District, with another somewhat smaller publicly owned tract to place much of central Pasco County, from Hillsborough County to Hernando County, in public ownership. Water from the subject parcel drains north toward central Pasco County and then into the Anclote River. The record is in conflict as to the drainage basin in which the subject parcel is located. According to BOR Appendix 6, which is dated May 2, 2006, the subject parcel is in the southern end of the Upper Coastal Drainage basin, which is a vast basin that stretches down the Gulf coast from north of Crystal River to the southern tip of Pinellas County. At points, this basin is not wide, such as at the southern tip of Pinellas County, where, just a few miles inland, the Tampa Bay Drainage basin begins. At other places, the Upper Coastal Drainage basin extends considerably inland, such as at the Pasco County--Hernando County line, where the basin extends about 25 miles east from the Gulf coast, ending only five miles west of the Withlacoochee River. According to District Exhibit 5, which is the District Land Acquisition Priorities Map issued in December 2004, the subject parcel is in the Tampa Bay/Anclote River Watershed. On this map, a large, unnamed watershed, corresponding roughly to the Upper Coastal Drainage basin in BOR Appendix 6, runs to the north of the subject parcel's watershed. At the hearing, District explained that the boundaries shown on District Exhibit 5 identify political subdivisions. The "basins," which are marked in green letters, appear to be political subdivisions, judging from their straight lines, which suggest political, not natural, boundaries. However, the "watersheds," which are marked in larger blue letters, are actual drainage basins. Applicant's ecologist initially believed that the subject parcel was in the Hillsborough watershed. Also, the basin map shown on the District website, District depicts the subject parcel's basin (here named the "Pinellas--Anclote River Basin") as that south of the large basin (here named the "Coastal Basin") encompassing almost the entire coast within the northern area of District's jurisdiction1. Factually, the stronger evidence places the subject parcel in a basin to the south of the large coastal basin described in the preceding paragraphs. However, for the reasons discussed in the Conclusions of Law, the basin depicted in BOR Appendix 6 governs. Although not yet constructed, an important feature of the subject parcel is a road to be known as Ashley Glen Road. This road will nearly bisect the property and will run north from State Road 54 through the Ashley Glen parcel. The road is likely to be developed because it has already been permitted, is subject to a co-developers' agreement, and has already been dedicated to Pasco County. The developer in Blanco I and Blanco II has since sold the Ashley Glen parcel to another developer, which has substantially changed the original plan of development. The new developer has obtained a Development of Regional Impact approval for the development of 1.8 million square feet of office, 450,000 square feet of retail, and 900 multifamily units. However, the new development will incorporate Ashley Glen Road. (For ease of reference, this recommended order continues to use the name, "Ashley Glen" to refer to the parcel, development, and road, although new names may attach to each.) At present, the subject parcel conveys stormwater from south to north. Running along the eastern edge of the parcel is a 20-foot-wide ditch that receives water, by way of a culvert under State Road 54, from the extensive wetland system known as the Hogan wetland, which lies to the south of State Road 54. The ditch was dredged (or re-dredged) about 50 years ago. From south to north, the ditch runs straight in a north-northwesterly direction to about midpoint on the subject parcel, at which point the ditch turns due north and runs in nearly a straight line into and along the eastern part of the Ashley Glen parcel to the north. The northern part of the Ashley Glen parcel widens in an easterly direction, so the ditch bisects this part of the Ashley Glen parcel, prior to turning to the northwest for a short run to the railroad grade. There are two wetlands presently on the subject parcel. In the southeast corner is an isolated wetland known as Wetland B12, which has been described above. The ERP approved in Blanco II authorizes the filling of this entire wetland, whose eastern third would be occupied by Ashley Glen Road. The Blanco II final order determines that Wetland B12 is a "low-quality, small (0.58 acres), isolated, forested wetland that has been impacted by livestock grazing and the intrusion of exotic species." (Recommended Order, paragraph 11.) The Ashley Glen developer originally intended to create on its property an 18-acre littoral shelf to mitigate wetland losses, including the loss of Wetland B12. However, the sale of the Ashley Glen parcel and adoption of a new development plan have delayed the creation of the littoral shelf. Applicant has thus proposed new mitigation in the form of a mitigation bank credit for the impact to Wetland B12. By this means, Applicant seeks permission to fill the wetland and proceed with development without waiting for the new Ashley Glen developer to create the mitigation for Wetland B12. Although the already-permitted loss of Wetland B12 is not an issue in this case, the mitigation for its loss is an issue. Because Applicant is proposing new mitigation for the loss of Wetland B12, it is necessary to determine whether Applicant, using the methodology adopted by District, has provided reasonable assurance that the functional gain from the proposed mitigation for Wetland B12 offsets the functional loss from its filling. The other wetland on the subject parcel is Wetland C12, which is a nine-acre contiguous wetland. The final order resulting from Blanco II authorizes no impact to Wetland C12, so its loss and the mitigation for the loss are issues in this case. The subject application proposes no impact to 4.5 acres of Wetland C12, permanent loss of 3.1 acres, and temporary loss of 1.4 acres (due to the realignment of part of the ditch, which is within Wetland C12). The part of Wetland C12 proposed to be destroyed is its southernmost one-third, which lies in the southern half of the subject parcel, immediately west of the west bank of the realigned ditch. Wetland C12 forms part of the conveyance, from south to north, of water from the Hogan wetland to the railroad grade at the northern boundary of the Ashley Glen parcel. Stormwater then accumulates against the railroad grade, runs west along the grade, backs up to contribute hydration to the large forested wetland at the northwest corner of the Ashley Glen parcel and the north half of Petitioner's parcel, and passes under the railroad grade by way of three culverts near the northwest corner of the Ashley Glen parcel. Wetland C12 has been disturbed by agricultural activities, mostly by the formation of the ditch. There is some testimony concerning a stream at this location, but the record does not support such a characterization. Based on the present record, prior to any disturbance, it is equally possible that water was conveyed by a stream, a slough, or sheetflow. For these reasons, the record does not permit a finding that the ditch is a restorable stream. Wetland C12 has little buffer from surrounding land cover and agricultural uses. According to Petitioner's testimony, which is credited, the dredging (or re-dredging) 50 years ago was the work of a nearby landowner who owned a dragline and used it to alleviate flooding near the Hogan wetland, presumably by deepening and widening the ditch. The hydrology of Wetland C12 has been altered, so that nuisance exotics and upland species are present at locations within the wetland, presumably including the portions of the banks hosting large spoil piles from past dredging. No listed species use Wetland C12, and its potential as habitat corridor is limited due to the extensive residential development that has taken place immediately to the west of Wetland C12, the extensive residential and commercial development taking place to the east of Wetland C12, and the barriers posed by the Suncoast Parkway and 280-foot right-of-way of State Road 54. Applicant has presented to District a plan to construct nine freestanding buildings with surface parking on the subject parcel. The plan is to construct, from north to south on the west side of Ashley Glen Road, a retail space of 5000 square feet and 75 parking spaces on 1.17 acres, a strip of nine retail spaces of 10,500 square feet and 61 parking spaces on 2.02 acres, a fast-food restaurant of 3800 square feet and 40 parking spaces on 1.02 acres, a convenience/retail store of 6000 square feet and 44 parking spaces on 1.66 acres, a fast-food restaurant of 3000 square feet and 44 parking spaces on 1.22 acres, and a bank of 4300 square feet and 38 parking spaces on 0.95 acres. On the east side of Ashley Glen Road, the plan is to construct, from south to north, a restaurant of 4700 square feet and 67 parking spaces on 1.19 acres, a bank of 4120 square feet and 43 parking spaces on 1.16 acres, and a supermarket complex. The supermarket complex comprises a supermarket, an attached strip identified as "Retail B," a restaurant abutting Retail B, an attached strip identified as "Retail C," and a restaurant abutting Retail C. The supermarket building is 237 feet by 205 feet and houses a 46,755 square-foot grocery store, and 1876 square-foot liquor store, and 1125 square-foot vestibule; the supermarket building is served by 243 spaces. Retail B comprises six retail spaces of 6500 square feet and 33 parking spaces; the restaurant is 3000 square feet and is allocated 34 parking spaces. Retail C comprises four retail spaces of 5600 square feet and 28 spaces; the restaurant is 3600 square feet and is allocated 40 parking spaces. The previously described bank and restaurant on the east side of Ashley Glen Road front State Road 54. Behind the drive-through lanes of the bank and parking of the restaurant are nearly all of the parking allocated to the supermarket complex. The supermarket faces State Road 54, although it is about 500 feet from the road and is located in the middle of the eastern half of the subject parcel. The liquor store is incorporated into the southwest corner of the supermarket building, which has a truck dock at the northwest corner. Running in a north-south direction, Retail B runs along the entire west side of the supermarket building. A strip of 40 parking spaces separates Retail B from Ashley Glen Road. Retail C is oriented perpendicular to Retail B and extends, in an east-west direction, off the southeast corner of the supermarket building. Wetland C12 would be occupied by the footprint of the eastern half to two-thirds of the supermarket building, half of the parking in front of the supermarket, half of Retail Strip C, and almost half of the restaurant fronting State Road 54 on the east side of Ashley Glen Road. In terms of area, the footprint of the supermarket and parking occupies about two-thirds of the 3.1 acres of Wetland C12 proposed to be permanently lost. Several components make up the proposed surface water management system, in addition to the rooftops and paving described above. Applicant proposes to realign a portion of the ditch running within Wetland C12, so that the southern half of the ditch will run on the extreme eastern edge of the subject parcel. For a short distance, two-thirds of the width of the proposed ditch is located off the subject parcel and on the parcel owned by DOT to the east. Applicant proposes to triple the width of the ditch to 60 feet and deepen it so that its bottom would be 20 feet wide. Applicant proposes impervious surface for the vast majority of the entire southern two-thirds of the parcel. A stormwater collector system would collect water and convey it north under Ashley Glen Road to the northwest corner of the subject parcel. The water would enter a 3.92-acre pond to be excavated at a depth to hold stormwater for 14 days from the design storm event, which is a 100-year, five-day storm. During this period, contaminants would be removed by evaporation, settlement, and skimming. A littoral shelf abutting the pond on the west will also permit the vegetative uptake of contaminants. Applicant has incorporated wet detention using the conservation design method, a design approved by District for improved stormwater treatment when compared to other wet-detention treatment designs. From the littoral shelf, stormwater will pass through an outflow structure and enter Mitigation Area B, which will be a created 1.4-acre cypress wetland at the very northwest corner of the subject parcel. Applicant will apply wetland topsoil from the dredged portions of Wetland C12 to Mitigation Area B to encourage the growth of wetland species. Stormwater will sheetflow through Mitigation Area B, which will enhance water quality treatment. Although District calculates mitigation credit for an area only up to the seasonal high water line, Applicant proposes, not merely to sod the slope ending at the seasonal high water line, as is the common practice, but instead to plant this area with native species, such as pines, palmettos, and wax myrtles. From Mitigation Area B, stormwater flows, by way of a culvert under Ashley Glen Road, to Mitigation Area A, which will be a created 2.5-acre cypress wetland directly across Ashley Glen Road from Mitigation Area A. Applicant will apply wetland topsoil to Mitigation Area A and plant native species on the upland slopes of the created wetland, which will also treat sheetflow prior to its passing east into the adjacent, undisturbed portion of Wetland C12. The vice-president of the managing partner of Applicant testified in the case. He has 20 years' experience in commercial construction sales and retail development. He has developed seven shopping centers anchored by a grocery store (Anchored Centers) and six shopping centers without a grocery- store anchor (Unanchored Centers). The corporate managing partner has developed 43 Anchored Centers and is developing five more. The site-selection process requires analysis of land costs, construction costs, prevailing market rents, outparcel values, zoning, title, environmental issues, and geotechnical issues. Analysis of the locational factors are especially important. These include traffic, residential development, and demographics. The intersection of the Suncoast Parkway and State Road 54 is ideal for the development of an Anchored Center. In the past seven years, 10,000 residential units have been developed in the State Road 54 corridor between State Road 41 and the Suncoast Parkway. The southeast quadrant of this intersection is being developed with mixed uses, including office and retail. A large parcel immediately east of the DOT parcel and Ashley Glen parcel is being developed with commercial uses. The southwest quadrant is being developed with a Super Target. Older residential areas exist to the east and southeast of the subject parcel. Applicant entered a contract to purchase the subject parcel in August 2002 and closed on the purchase in November 2003. It has a contract with Sweetbay Supermarket for the grocery store. The appeal of the Anchored Center is in the synergy between the anchor--the supermarket--and the outparcels. The proposed Anchored Center would be a one-stop destination for the consumer seeking the goods and services associated with a supermarket, bank, restaurant, and allied retail and may thus shorten or reduce the number of motor-vehicle trips. Raw land in the vicinity of the intersection of the Suncoast Parkway and State Road 54 has been appreciating at a monthly rate of about three percent during the past four or five years. Parcels in Anchored Centers command a considerable premium over similar parcels in Unanchored Centers, and substantially different business risks attach to each kind of development. One of the differences between the Anchored Center and Unanchored Center is the former's requirement of additional parking. Given this requirement, there was no design modification that would accommodate a shopping center and parking without destroying wetlands. Although Sweetbay Supermarket has a template for a smaller building than the one proposed on the subject site, the smaller building is typically reserved for urban settings, and nothing in the record suggests that even the smaller building, with surface parking, would spare the wetlands completely. In its site-planning exercises, Applicant tried to reduce wetland impacts by moving the supermarket to different locations on the subject parcel. The supermarket will not fit on the west side of Ashley Glen Road. On the east side, Applicant moved it as far west as it could to avoid as much wetland impact as possible given the location of the supermarket at the midpoint of the east side of the subject parcel. The present location represents the best accommodation of the Wetland C12 and the commercial development, at its proposed intensity, that Applicant could find after 8-10 reconfigurations of the site improvements. Given the shape of the subject parcel and Wetland C12, the proposed midpoint location impacts Wetland C12 less than any other location, except right at the northeast corner of the intersection of Ashley Glen Road and State Road 54. However, obvious marketing problems arise with this location. Sweetbay Supermarket understandably desires the supermarket to face State Road 54 to attract business. If the supermarket were located at the northeast corner of these two roads, there would be no parking in the front, requiring the customers to enter from the back, or the back of the supermarket would face State Road 54. In designing the site, Applicant reduced some retail space and associated parking to reduce wetland impacts. At the present midpoint location, the elimination of Retail B and Retail C would permit Applicant to move the building to the west, but this would only slightly reduce the wetland impacts because substantial wetland impacts would occur to the south under the footprint of the parking. Similarly, a parking garage would permit Applicant to avoid those substantial wetland impacts, but not the smaller, but still significant, area of wetland impacts under the footprint of the east side of the supermarket building and Retail C. Of course, Applicant could combine these two modifications--elimination of Retail B and Retail C with the relocation of the supermarket building to the west and the construction of an elevated parking garage on the western half of the proposed footprint of the parking area in front of the supermarket building. Applicant contends that these modifications are not economically practicable. Undoubtedly, parking garages are not typically associated with nonurban development. The vice-president of the managing partner admitted that he had not priced such structures, but estimated that each space in a parking deck would cost 10 times more than each space at grade. With somewhat more authority, he also testified that the loss of any more retail space would leave the development economically unfeasible. Sweetbay Supermarket's declared and presumed preferences also play a role in evaluating this substantial design modification. Sweetbay Supermarket prefers retail on both sides of the supermarket, and, given its need for visibility from State Road 54, it may be presumed not to favor the presence of a multi-story parking garage between its grocery store and State Road 54. Again, placing the parking garage behind the supermarket would gain visibility, but raise the prospect of the back of the supermarket facing State Road 54 or the customers entering the store from the back. These are all plainly unacceptable prospects, without regard to Applicant's notions of economic feasibility or return on investment. Similar considerations apply to the possible realignments of the ditch. In its present alignment, the ditch would be occupied by the footprint of the west half of Retail C, the northeast corner of the supermarket building, as well as parking and paved roadway associated with the supermarket and the restaurant fronting State Road 54 on the east side of Ashley Glen Road. Because the ditch does not extend nearly as far to the west as does Wetland C12, it would be possible to preserve the present ditch by eliminating Retail B and Retail C and shifting the supermarket building to the west with the "extra" parking gained by the elimination of the two retail strips probably offsetting the lost parking in front of the supermarket. But this is a lot to ask to preserve a conveyance that, on this record, does not rise above the homely level of a ditch with its attendant functional limitations, especially when the new ditch will probably relieve existing flooding around the Hogan wetland. Applicant's ecologist applied the Uniform Mitigation Assessment Method (UMAM) to assess Wetlands B12 and C12 and the mitigation areas. UMAM and its applicability to this case are discussed in the Conclusions of Law. Generally, UMAM provides a methodology to determine the functional loss of permanent and temporary wetland impacts and the functional gain of mitigation and ensure that the latter equal or exceed the former. For Wetland B12, Applicant's ecologist determined that its functional value, based on location and landscape support, was 5 out of 10 points due to the isolated nature of the wetland in a pasture, adjacent to a tree farm and absent any buffer. Invasives and exotics are in the adjacent community. Based on water environment, the ecologist scored Wetland B12 with 7 out of 10 points due to the presence of distinct water indicators, although the wetland appears to be dependent on rainfall and had suffered degradation from cattle. Based on community structure, the ecologist scored Wetland B12 with 6 out of 10 points due to its normal appearance for a cypress dome, but evident lack of natural recruitment, presence of nuisance exotics such as primrose willow and Brazilian pepper, and severe degradation from cattle and other agricultural uses. The ecologist's assessment of the permanent impact to 3.1 acres of Wetland C12 and temporary impact to 1.4 acres of the ditch within Wetland C12 followed the same approach, except that the temporary impact to the ditch required an additional step in the process. Applicant's ecologist scored the impacted area of Wetland C12, including the 1.4-acre ditch, with an average functional value of 6.67, based on scores of 7 for location and landscape support, 6 for water environment, and 7 for community structure. The location and landscape support are adversely impacted by the reduced complexity of surrounding uplands, but facilitated by the undeveloped state of the immediate vicinity that would allow use by small- to medium- sized wildlife. The ecologist noted the hydrological connection served by the ditch/wetland network and the narrow riparian corridor provided by this arrangement. The function of the water environment is heightened by the fact that most of the water environment is intact, but suffers from adverse impacts to the hydrology and water quality from the construction of the ditch and conversion of surrounding land cover to pasture and roadway. The community structure is facilitated by the presence of canopy vegetation of cypress, pop ash, and laurel oak, but adversely impacted by the presence of Brazilian pepper in the subcanopy. The additional step required in the analysis of the temporary impacts to 1.4 acres is the projected functional value of the relocated ditch. As compared to the present ditch, the re-created ditch scored one less point in location and landscape support due to the further reduction in adjacent uplands and resulting inhibition on use by medium-size wildlife that currently use the site, one less point in water environment due to some changes in microclimate, nutrient assimilation, and flow characteristics that may adversely affect current wildlife composition, and four fewer points in community structure due to removal of the canopy, subcanopy, and groundcover with the associated seed banks and vegetative growth that could recruit similar species to match existing composition and structure. Based on the foregoing, the ecologist concluded that the permanent functional loss to Wetland B12 was 0.35 units, the permanent functional loss to the 3.1 acres of Wetland C12 was 2.07 units, and the temporary functional loss to the 1.4 acres of Wetland C12/the ditch was 0.28 units, resulting in permanent functional losses of 2.42 units and temporary functional losses of 0.28 units, for a total functional loss of 2.70 units. For onsite mitigation of these functional losses, Applicant proposes Mitigation Areas A and B. Mitigation Area B, which is the 1.4-acre forested wetland to be created on the west side of Ashley Glen Road, received a score of zero in its present undeveloped state, and scores of 4 for location and landscape support, 7 for water environment, and 6 for community structure after it is created. The relatively low score for location and landscape recognizes the limited connectivity (through culverts) to other existing and proposed wetlands, although the lack of barriers for use by birds and aquatic species is a functional advantage. The relatively high score for water environment reflects the hydrological interdependence of Mitigation Area B with the stormwater collection system and created wetlands and the relative reliability of these sources of hydration. The score for community structure reflects the increases in microtopography resulting from the design of high and low wetland areas and the planting of species to create three vegetative strata within the created wetland. The ecologist assigned a time lag factor of 2.73 for this created wetland. Derived from Florida Administrative Code Rule 62-345.600(1)(d), this time lag factor correlates to a time lag of 36-40 years to establish the mitigative functions for which the mitigation site is given credit. The ecologist assigned a risk factor of 2 for this created wetland. Derived from Florida Administrative Code Rule 62-345.600(2), this risk factor correlates to a moderate risk of failure of attaining the functions predicted for the mitigation site. Applying the risk and time lag factors to Mitigation Area B, the ecologist calculated a functional gain of 0.15 units for this 1.4-acre mitigation site. The ecologist used the same methodology for Mitigation Area A, which is the 2.5-acre created wetland across Ashley Glen Road from Mitigation Area B. The ecologist assigned this created wetland a 6 for location and landscape support, a 7 for water environment, and a 7 for community structure. This wetland scored 2 points higher than Mitigation Area B for location and landscape support because it is not isolated by the road and culverts from the unimpacted area of Wetland C12 and offers more upland buffer for small wetland-dependent species. Mitigation Area A scored 1 point higher for community structure due to the likelihood of natural recruitment of seeds from the adjacent unimpacted wetland. For water environment, Mitigation Area A and Mitigation Area B received the same score due to their common characteristics. The ecologist applied the same time lag factor to Mitigation Area A as he did to Mitigation Area B. However, the risk factor was one increment less than moderate, probably due to the hydrological advantages that Mitigation Area A enjoys over Mitigation B due to its pre-existing hydric soils and proximity to the unimpacted wetlands of Wetland C12. Applying the risk and time lag factors to Mitigation Area A, the ecologist calculated a functional gain of 0.35 units for this 2.5-acre site. Applicant's ecologist then calculated the functional gain from the enhancement of the 1.4-acre Wetland C12/ditch. He found an increase of 0.13, as compared to the current value, based on a relatively strong score for the enhanced location and landscape support, average score for the enhanced water environment, and relatively weak score for the enhanced community structure. The enhanced system enjoys functional advantages from the planting of three strata of vegetation along the ditch and emergents in the channel. The ecologist applied a time lag factor of 2.18 (meaning 26-30 years) and a moderate risk factor of 2.0 to obtain a final score of 0.03 acres for this enhancement mitigation. The functional gains and losses for the onsite wetland impacts and mitigation, as determined by Applicant's ecologist, are supported by the record, and his analysis of these losses and gains from the onsite creation and enhancement mitigation is accurate. Next, Applicant purchased a conservation easement as offsite mitigation. This easement is on what is known as the Marr Parcel. The Marr Parcel is a 67.49-acre parcel that sits almost in the middle of a large publicly owned area that runs nearly 30 miles along the coast, from Weeki Wachee to the south to Crystal River to the north. Situated in the north-central part of this large area is the District-owned Chassahowitzka River and Coastal Swamps tract (Chassahowitzka Tract). The Marr Parcel is at the southern end of the Chassahowitzka Tract, about four miles from the Gulf of Mexico. The Marr Parcel is about 33 miles from the subject parcel. The Marr Parcel is in the large coastal basin that, according to BOR Appendix 6, includes the subject parcel and, according to District Exhibit 5, is the basin to the north of the basin that includes the subject parcel. At the end of Zebra Finch Road, the Marr Parcel is surrounded by pristine forested wetland habitat that forms part of an important travel corridor for numerous species, including the Florida black bear. This is a sustainable population of Florida black bears, so this habitat is of critical importance. The forested habitat is a combination of cypress and mixed hardwoods. The larger publicly owned area enveloping the Marr Parcel includes almost every significant habitat present in Florida. Other parcels preserved by similar means are directly north of the Marr Parcel. Applicant's ecologist raised the Marr Parcel's score by 1 point for location and landscape support and 1 point for community structure, as a result of the purchase of the conservation easement. The parcel's score for water environment was unchanged by the purchase of the conservation easement. Taking the modest gain from the purchase of the conservation easement, the ecologist applied the preservation adjustment factor of 0.60 to reduce this gain further and then applied a time lag factor of 1.0, indicative of a time lag of one year or less, and a risk factor of 1.25, indicative of the smallest incremental risk above no risk, to determine a functional gain of 2.16 units for the preservation mitigation involving the Marr Parcel. Petitioner contends that development of the Marr Parcel was unlikely, even without the conservation easement purchased by Applicant. Without detailed analysis of site characteristics and regulatory controls applicable to the Marr Parcel, it is impossible to evaluate this contention, except to note that the ecologist took very little credit for the transaction. The smallest credit is one point in all three categories; the ecologist took two points. The functional gain for this preservation mitigation, as determined by Applicant's ecologist, is supported by the record, and his analysis of this gain from the offsite preservation mitigation is accurate, provided District clarifies the ERP, which describes the Marr Parcel in detail, to require that Applicant purchase the conservation easement in the Marr Parcel as part of the required mitigation. Lastly, Applicant turned to the Upper Coastal Mitigation Bank (UCMB) to purchase 0.4 acres of forested- wetlands credit. This mitigation bank, which is administered by Earth Balance, pertains to property (UCMB Tract) that is just north of the Chassahowitzka Tract, immediately south of Homosassa Springs. A few months prior to the hearing, District permitted the UCMB for 47.64 functional gain units, for the purpose of providing mitigation bank credits to ERP applicants. District has approved UCMB for freshwater forested wetlands credits, among other types of credits. The UCMB Tract is about seven miles north of the Marr Parcel and, thus, about 40 miles north of the subject parcel. The UCMB Tract is in the large coastal basin that, according to BOR Appendix 6, includes the subject parcel and, according to District Exhibit 5, is the basin to the north of the basin that includes the subject parcel. Based on the foregoing, Applicant realized a functional gain of 0.52 units from the onsite creation and enhancement mitigation, 2.16 units from the offsite preservation mitigation from the Marr Parcel, and 0.40 units from the purchase of units from UCMB, for a total functional gain of 3.09 units. Pursuant to UMAM, the 2.70 functional loss units are exceeded by the 3.09 functional gain units, so Applicant has provided adequate mitigation. Applicant provided reasonable assurance that the proposed activity will not cause adverse impacts to the storage and conveyance capacity of surface waters. As noted above, Applicant proposes to expand the conveyance capacity of the ditch by substantially widening and deepening it, which will probably alleviate some of the longstanding flooding around the Hogan wetland. With respect to Petitioner's parcel, Applicant will place a liner on the west side of the pond, so as to prevent adverse impacts to Petitioner's parcel from base flow. Applicant will add a swale along the west side of the subject parcel to prevent adverse impacts to Petitioner's parcel from stormwater flow. The engineer's analysis in particular does not reveal flooding at the northwest corner of the Ashley Glen parcel, from where Petitioner's wetlands draw hydration. No testimony revealed whether Applicant's engineer performed pre- and post-development analysis of flows at the point at which the re-created ditch leaves the subject parcel at the DOT floodplain-mitigation site. Nothing in the record suggests that the proposed activities will cause flooding of this site, and DOT will likely perform its own analysis prior to granting Applicant a sufficient interest to dredge part of the realigned, enlarged ditch on DOT property. The proposed activities will fill 8.48 acre-feet of floodplain, but mitigate this loss with 10.02 acre-feet of excavation. Considered with the increased capacity of the drainage ditch, Applicant proposes to increase flood storage. Applicant has provided reasonable assurance that the proposed activities will not adversely impact water quality. The water-treatment components of the proposed surface water management system have been described above. Applicant provided reasonable assurance that the proposed activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Some minor loss of use by small- and medium-size wildlife may be expected from the loss of 3.1 acres of Wetland C12, but the presence of State Road 54 and imminent development of the Ashley Glen parcel mean that Wetland C12 can provide no meaningful travel corridor. Degraded adjacent uplands further reduce the value of Wetland C12 as habitat for such wildlife. The created pond will provide habitat for certain birds, and the offsite mitigation will provide functional gain in terms of wildlife habitat. Changes in fish habitat from the relocation of part of the ditch and dredging of the ditch are also negligible, based on limited utilization of the present ditch and enhanced utilization potential of the new ditch in terms of a more suitable bank, which will be protected from erosion by matting, and the addition of appropriate vegetation, including emergents in the channel. For the reasons set forth above, Applicant has provided reasonable assurance that the proposed activities will not cause adverse secondary impacts to the water resources. Although the post-development wetlands are unbuffered, the secondary impacts of construction are addressed by the usual construction devices of turbidity curtains and hay bales, and the secondary impacts of the ultimate use of the Anchored Center are adequately addressed by the by the subject surface water management system, especially with respect to water quality treatment. District's senior environmental scientist disclaimed the existence of post-development secondary impacts, evidently reasoning that Wetlands B12 and C12 had already been impacted. As discussed in the Conclusions of Law, the secondary impacts are the activities closely linked to the construction of the project. In this case, the project is the surface water management system to serve the development of the Anchored Center, and the obvious secondary impact is motor vehicle traffic on the subject parcel. However, the water-quality analysis addresses this secondary impact. Subject to one exception, Applicant has provided reasonable assurance that the proposed surface water management system will perform effectively and will function as proposed and that an entity with the requisite financial, legal, and administrative capabilities will conduct the proposed activities. The exception is that District may not issue the ERP until Applicant obtains from DOT a legal instrument, in recordable form, granting Applicant and its assigns all rights necessary to construct, maintain, and operate the portion of the realigned ditch that will be located in the DOT floodplain mitigation parcel. Based on the Conclusions of Law, which necessitate the acceptance of the basin depictions in BOR Appendix 6, Applicant has provided reasonable assurance that the proposed activities will not cause adverse cumulative impacts upon wetlands and other surface waters. However, if the subject parcel were in the basin to the south of the large coastal basin, Applicant has not provided reasonable assurance that the proposed activities will not cause adverse cumulative impacts because it has not undertaken any cumulative-impact analysis. Based on the foregoing and subject to the two conditions stated above, Applicant has provided reasonable assurance that the proposed activities in, on, or over wetlands or other surface waters are not contrary to the public interest.
Recommendation It is RECOMMENDED that the Southwest Florida Water Management District issue to Win-Suncoast, Ltd., the environmental resource permit, subject to the two conditions identified above. DONE AND ENTERED this 14th day of February, 2008, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2008.
The Issue The Department of Environmental Protection seeks to impose costs and specific restoration requirements resulting from unpermitted dredging and filling by Respondent. Inherent in that issue are the following: Whether the property at issue was within the Department's dredge and fill jurisdiction at the time the property was filled; and The amount of the Department's costs, if any.
Findings Of Fact The parties' stipulated to the following facts: Petitioner agency has the authority to administer and enforce Chapter 403 F.S. and the rules promulgated thereunder, specifically Title 62 F.A.C., formerly Title 17 F.A.C. Respondent is the developer of a parcel of real property located in Section 10, Township 9 South, Range 27 East, Putnam County, Florida, known as Lot 85, Rio de St. John Subdivision, located at the northwest corner of the intersection of South Main and Southwest 6th Terrace. The property is a wetland area. On February 13, 1992, agency personnel inspected and found fill material had been placed on two areas of the parcel: an area approximately 88 feet by 83 feet for residential development (area 1) and an area approximately 83 feet by 25 feet for an access driveway (area 2). The fill material was placed by Respondent without a permit and covers 0.2 acres of the parcel. In Warning Notice WN-92- 0118-DF54 NED, dated February 17, 1992, the agency informed Respondent that its activities violated Chapter 403 F.S. and Title 17 F.A.C. Respondent has never applied for a permit and has proposed no mitigation for the filling done without a permit. Jack Dunphy is the supervisor of Petitioner's dredge and fill enforcement section for its Northeast District. He earned a B.S. in biology and has taken postgraduate courses in plant morphology, plant taxonomy (the identification of plants) and wetlands ecology. He has had further annual training by the agency in wetland plant identification. He was accepted as an expert in the identification of wetland species and agency enforcement procedures. At all times material, Mr. Dunphy used the version of Chapter 17-301 F.A.C. accepted as Joint Exhibit B in making his determination that the agency has dredge and fill jurisdiction of Lot 85. The Respondent contended that the agency had no dredge and fill jurisdiction because Lot 85 is an isolated wetland. At all times material, the rules did not place isolated wetlands within agency jurisdiction. See, specifically, Rule 17-312.045 F.A.C. The rules were amended effective July 1, 1994 to give the agency jurisdiction over isolated wetlands. Both parties place substantial reliance upon Rule 17-312.030(2)(d) F.A.C. which provided in pertinent part: For the purposes of this rule, surface waters of the state are those waters listed below and excavated water bodies, except for waters exempted by [rule], which connect directly or via an excavated water body or series of excavated water bodies to those waters listed below: * * * (d) rivers, streams and natural tributaries thereto, excluding those intermittent streams, tributaries or portions thereof defined in [statute]. Standard hydrological methods shall be used to determine which streams constitute intermittent streams and intermittent tributaries. An intermittent stream or intermittent tributary means a stream that flows only at certain times of the year, flows in direct response to rainfall, and is normally an influent stream except when the ground water table rises above the normal wet season level. Those portions of a stream or tributary which are intermittent and are located upstream of all nonintermittent portions of the stream or tributary are not subject to the dredge and fill permitting unless there is a continuation of jurisdiction as determined pursuant to [rule]. The agency used the procedures outlined in Chapter 17-301 F.A.C. to determine whether Lot 85 was connected either vegetatively or hydrologically to a named water body. Chapter 17-301 F.A.C. lists both the wetland plants and the method for determining dominance of those species. It is undisputed that, under the applicable rules, an area is connected vegetatively to a state water if there is a domination of wetland plants connecting the area to a named water body. It is undisputed that, under the applicable rules, an area is connected hydrologically to a state water if there is an open water connection from the area to a named water body. On the ground, an area may be physically connected to a state water either vegetatively (dominant named species) or hydrologically (by water). On the ground, an area may be physically connected vegetatively and hydrologically. Mr. Dunphy, on behalf of the agency, interpreted the agency's rules to establish a jurisdictional connection if an area is connected by a combination of water and vegetation. Respondent contended this is a clear misinterpretation of the agency's own rule. The agency's standard operating procedure at the time Respondent placed the fill was to interpret its rules in para materia to require that its personnel "ground truth" the area in question by first identifying surface waters (a named water body, in this case, Mason Branch and its unnamed tributaries) and proceed landward, by ground, to establish the connection. As long as there was water or dominant jurisdictional vegetation, the agency pronounced a jurisdictional connection. Mr. Dunphy determined that Lot 85 was dominated with wetland vegetation and that the water on that parcel flowed through a culvert under South Main Street and off to the east of the property. South Main Street is a dirt road which has been in place for approximately twenty years. South Main Street physically separates Lot 85, which contains jurisdictional vegetation, from jurisdictional vegetation growing to the east of South Main Street. It does not separate Lot 85 from the lot immediately north of Lot 85, which is also covered with jurisdictional vegetation. The water on Lot 85 and this adjacent lot drains through the same culvert, (hereafter culvert A) under South Main Street to the east. Mr. Dunphy drove through the area and identified what he considered to be an hydrologic connection between Lot 85 and an unnamed tributary of Mason Branch. There is no dispute that Mason Branch is a water of the state. It appears on maps going back to the nineteen-sixties. The unnamed tributary was identified on P-3, the United States Department of the Interior Geological Survey (USGS) Quad Map. Mr. Dunphy traced the tributary's approximate route in red on Exhibit P-3. Although Respondent succeeded in getting some witnesses to admit that the unnamed tributary could not be described as a "bubbling stream," witnesses Adams, Dunphy, and Eaton all testified to having seen on the ground what they were able to identify as, "an unnamed tributary of Mason Branch." As one responsible for enforcing the agency's dredge and fill rules, Mr. Dunphy commonly refers to aerial maps, USGS maps, wetland inventory maps, and aerial photographs to determine jurisdiction. Using such photographs and maps (P-2 and P-3), Mr. Dunphy indicated in red ink approximately how Lot 85 is connected to the Mason Branch tributary. In general, water flows from Lot 85 to the lot north of Lot 85 (designated with a blue 5 in a circle on P-2), through culvert A north of Lot 85 and under South Main Street, then through a wetland area marked by jurisdictional vegetation east of South Main Street where it connects to an excavated ditch. The excavated ditch turns to the north where it empties into another wetland area marked by jurisdictional vegetation, and then through culvert B under another dirt road. From there, the water flows through jurisdictional vegetation to the unnamed tributary connecting to Mason Branch. The water course from the end of culvert A to the beginning of the excavated ditch cannot be seen on P-2, an aerial photograph, because of the canopy of the wetland trees. The western beginning of the ditch is indicated by a blue 1 in a circle and the eastern end of the ditch is indicated by a blue 2 in a circle. Mr. Dunphy visited the vicinity of Lot 85 eight times between the agency's discovery of the unpermitted fill in 1992 and formal hearing in 1995. Each of the eight times Mr. Dunphy visited the site, water was flowing through culvert A running under South Main Street and Lot 85 was inundated. Water also was running through culvert B. On his first visit to the area, Mr. Dunphy walked from the eastern side of South Main Street, opposite Lot 85, into the woods and saw a small, approximately seven foot wide, defined channel where the water flowed over jurisdictional vegetation east to the ditch. He saw quite a bit of water through this area and water flowing through the channel prior to reaching the ditch. According to Mr. Dunphy, the area east of South Main Street but west of the ditch contained cypress and tupelo trees with buttressed (expanding out) trunks and water lines, lichen lines and moss lines which appeared to be above the level of the street due to periodic inundation of the area. This is the type of hydrologic indicator from which scientific judgment may conclude that inundation or saturation is frequent, whether or not a specific agency rule to that effect is in place. Indeed, it is fairly simple cause and effect logic, and therefrom the undersigned infers, that water in the area has frequently stood higher than the road and may have overflowed the road. Also, on a visit in the month preceding formal hearing, Mr. Dunphy observed that some of the dirt roads in the area were heavily washed out in places by high water. Mr. Dunphy's walking the parcel and tracing the runoff constituted "ground truthing." Because Respondent challenged agency jurisdiction, Mr. Dunphy requested that the agency's Jurisdictional Evaluation Team from Tallahassee also make a determination as to whether or not Lot 85 was within the agency's dredge and fill jurisdiction. The Jurisdictional Evaluation Team consisted of David Bickner, a botanist, and Dr. Jim Cooper, a soil scientist. Petitioner agency has assigned them the responsibility for making similar jurisdictional determinations around the state. As an expert in enforcement procedures, Mr. Dunphy regularly relies on the team's opinion concerning jurisdiction. He went to the area with the team during their ground-truthing inspection and relied on the team's report. The report also explains and supplements Mr. Dunphy's direct evidence. That October 26, 1993 report concluded from a visit to the site on October 19, 1993 that Lot 85 was within the agency's jurisdiction and listed the vegetation which connects Lot 85 to the unnamed tributary of Mason Branch. The report states, in pertinent part, as follows: The . . . property was inspected 19 October 1993. The property had been timbered recently and most of the canopy trees were gone. Those trees remaining were the same species as the trees on adjacent properties on all sides . . . which were covered with mature swamp hardwood forest. Many of the stumps on the . . . property were sprouting, so they could be identified to species and these were also the same as those on adjacent properties. The dominant canopy species on the adjacent properties were black gum (Nyssa sylvatica var. biflora) and bald cypress (Taxodium distichum). Other species present included dahoon holly (Ilex cassine), red maple (Acer rubra), and slash pine (Pinus elliottii). The gum and cypress tended to make up 80 to 85 percent of the areal coverage of the canopy, with dahoon and maple being the majority of the remainder. Much of the groundcover vegetation . . . consisted of invader species which had moved into the areas of fill. All other species present were wetland plants. A list of the plants found on this property is attached . . . The property was inundated at the time of the inspection. Water exited the property at its north- west corner through a culvert under South Main Street, flowing east into the swamp on the other side of the street. This swamp ran northeast and where it ended a ditch approximately 7 ft. wide turned north to connect to another swamp near Southeast Second Avenue. Water from this swamp passed under Southeast Second Avenue through another culvert and continued into another swamp on the north side of the road. This swamp ran north, turning gradually to the east where it connected to a tributary of Mason Branch. This point of connection was by means of a ditch which flowed through a wet hardwood hammock forest. Flow in all of these waterways was brisk at the time of the inspection and all points of connection were visited and inspected. Mason Branch is a water of the State, therefore all waterways and wetlands connected to it are also waters of the State . . . The property is vegetated by plant species which are currently listed in Sections 17-301.400(2) and Florida Administrative Code. (emphasis supplied) The agency concluded that Lot 85 is within the headwaters of a larger wetland area that constitutes the headwaters of the unnamed tributary of Mason Branch, a water of the state. In 1991, the Respondent had employed Mike Adams to analyze its property for purposes of planned development and to render advice as to what state and federal permits would be required. He visited the area six times and Lot 85 twice. He initially advised Respondent that Lot 85 and the other parts of the subdivision were located in wetlands subject to the jurisdiction of Petitioner agency and the Army Corps of Engineers, and that development required permitting by both those agencies and possibly by St. John's Water Management District. Mr. Adams has a B.A. in biology and an M.S. in environmental management. At the time of formal hearing, he was a Natural Resources Manager for the Florida National Guard. He is a Certified Environmental Professional. He was accepted as an expert in wetland plant identification. In his work as a private consultant for the Respondent, Mr. Adams had determined that Lot 85 was within the Department's jurisdiction. In making that determination, he analyzed whether or not Lot 85 was dominated by wetland plants. Then he determined whether or not the vegetative composition of the wetland plants on Lot 85 extended off-site. In determining that wetland plants were dominant both on-site and off- site, Mr. Adams employed the plant species and the method for determining dominance set out in the Department rules in effect at all times material. Lot 85 was covered with jurisdictional wetland plants such as cypress, sweet gum, black gum and red maples. In Mr. Adams' opinion, Lot 85 was within the Department's dredge and fill jurisdiction because it was part of a headwater wetland. In formulating his opinion, Mr. Adams walked the entire length of the connection between Lot 85 and the waters of the state, starting at culvert A crossing under South Main Street, through the wetlands to the east of South Main Street, along the excavated ditch, across the street to the north and as far as the unnamed tributary of Mason Branch. Mr. Adams drew the path of the connection beginning at the west end of the ditch shown on Petitioner's Exhibit P-2, an aerial photograph of a portion of Putnam County. On P-2, he designated Lot 85 with a green circle with an "85" in it and the culvert under South Main Street with the letter "A". The aerial photograph and oral testimony clearly demonstrated jurisdictional vegetation dominates between culvert A and the west end of the ditch, from the east end of the ditch to culvert B, parallel to both sides of the ditch for the entire length of the ditch. Mr. Adams also drew in green the path of the connection and outlined Lot 85 and designated it as such on P-3, the USGS Quad Map. Exhibit P-3 as printed by the Department of the Interior does not show a wetland connection. However, Mr. Dunphy and Mr. Adams are agreed that quad sheets like P-3 are not 100 percent accurate in identifying water courses. Mr. Adams never relies solely on quad sheets for determining and advising clients concerning Petitioner state agency's jurisdiction. In his expert opinion, the information on the quad sheets must be ground-truthed. In response to questioning as to why various exhibits did not show all the intervening property between Lot 85 and Mason Branch as "wetlands," Mr. Dunphy testified that the USGS maps only depict wetlands in a general way, both because of the scale and how they are created. The USGS Quad Map itself contains a disclaimer stating that its information is not field checked. "Field check" is synonymous with "ground truth." Mr. Dunphy further testified and pointed out that the National Wetlands Inventory Map created by the United States Department of the Interior (R-3) contains a similar disclaimer which specifically provides that map is not an indication of wetland extent as determined by other federal, state and local regulations. Mr. Adams determined that there was an intact vegetative connection for Lot 85 to the unnamed tributary of Mason Branch; that the excavated ditch was full of water and that the excavated ditch and/or the spoilage (earth thrown up parallel on either side of the ditch when it was dug) was also dominated with wetland plants covered by agency rule. More specifically, although the excavated ditch appears to start at the edge of the wetland area to the east of South Main Street on P-2, Mr. Adams' green markings demonstrated that it actually starts some distance into the wetland area. The ditch feathers out at both its west and east ends, but identifiable wetland vegetation links up to the hydrologic connection. Thus, in Mr. Adams' opinion, there was an unbroken chain of wetland vegetation from Lot 85 to the tributary of Mason Branch except for the roads, where the water (a hydrologic connection) flowed through culverts under the roads. At the time Mr. Adams walked the connection route, the area to the east of South Main Street had pockets of standing water but did not have water flowing through it. Although water was not flowing through the area, Mr. Adams concluded that water typically did flow through that area because of the depth of the standing water which initially caused him not to notice culvert A, which was overgrown, and because the plants present in that area were wetland plants. Admittedly, Mr. Adams was less than articulate when examined about the effects of seasonal rains, intermittent rains, and intermittent flow of the water on the ground, but he eventually made himself clear. He first testified that he thought the flow of water from Lot 85 was "intermittent," but he later clarified that he was not using that word as contemplated by the statute and rule. At one point, he testified that by "intermittent," he intended to mean "seasonal," but did not intend to also indicate that the connection met the definition of "intermittent stream" in the statute or rule. He was perfectly candid that the ditch on the east side of the road did not connect water body to water body but connected vegetation to vegetation and water ran through the ditch from vegetation to vegetation. He agreed that if "hydrologic connection" can only mean "water connecting to water" then there is no hydrologic connection between Lot 85 and the unnamed tributary. However, from the whole of his testimony, it is apparent that surface and ground waters are both involved; water flow depends upon rain regularly depositing water upland, and the water stands, flows slowly, or flows rapidly, dependent upon how deep the water gets, to the tributary; there is probably an exchange of waters with the tributary; this is not dependent upon a specific wet season but during drought periods, no flow will be observed. These explanations do not alter or diminish Mr. Adams' opinion that, applying standard scientific indicators of soil, vegetation composition and hydrology, there is a regular connection by surface and ground water between Lot 85 and the unnamed tributary. He was also definite that there was standing water in the whole area when he was there and that he interprets "isolated" as used in the rule to mean no hydrologic or vegetative connection whatsoever exists and that the water would have to exit Lot 85 without going to the water source (state water) only as a result of periodic flow, which he does not believe to be the situation here. Respondent's Exhibits P-4 and P-5 were videotapes. Respondent's witness, Jack Buchansky, was unable to independently identify most of the footage of either P-4 or P-5. Exhibit P-4 was irrelevant in large degree. At most, the two videotapes together show a single occasion shortly before formal hearing when South Main Street, Lot 85, and areas in the vicinity were dry, but even so, they show dirt roads with ditches parallel on each side containing standing water and vegetation. Standing water and vegetation also appear in the culvert shown and in the depression between tire tracks or ruts on the roads. The nature of the vegetation was not explained. Except for asserting that the dirt roads have been high and dry for 20 years and during hundreds of his visits and that water only flows in the ditches during heavy rains, Mr. Buchansky testified much to the same effect as the other witnesses: that the area across the street from Lot 85 (the same area identified by other witnesses with an X in a circle on P-2) was a natural drainage or spill area and that he never went back there because the water stands there after each rain; that the vegetation is the same throughout the area except for the barriers created by the roads; and that water drains away from his property toward the east by way of culvert A. The greater weight of all credible competent evidence is that jurisdictional vegetation grows on Lot 85; that jurisdictional vegetation grows on the lot to the north; that jurisdictional vegetation grows everywhere east of South Main Street, even in the man-made ditch and/or on the ditch's "spoil" connecting two patches of jurisdictional vegetation, and that the depressed water channel over vegetation between culvert A and the west end of the man-made ditch and the man-made ditch itself collect and funnel rain and ground water because each is lower than the surface soil; and that jurisdictional vegetation dominates from the east end of the ditch to culvert B and between culvert B and the tributary. The roads create a barrier to jurisdictional vegetation, but the culverts carry the water between the areas of jurisdictional vegetation. Wherever the water goes, it is possible for seeds to travel and propagate dominant plant species, dependent upon which plants are involved, and the water flows regularly to the tributary. Unrefuted competent testimony shows that restoration of Lot 85 is necessary because Respondent's fill has caused the wetland to lose some of its functions, including filtering ability, habitat for wildlife dependent on the wetlands, and water storage for flood control. Appropriate restoration will require that the fill be removed to the original grade and that a mixture of red maple, cypress, dahoon holly, tupelo and gum trees be planted. The trees should be three-gallon size. The cypress and tupelos should be planted in the lowest areas and the red maples should be planted in the highest areas. Mike Eaton was accepted as an expert in the agency's dredge and fill procedures and permit criteria. He visited the site with Mr. Dunphy to determine whether the fill on the property could be permitted. He concluded it could not be permitted without mitigation. The agency prepared an exhibit itemizing expenses it claimed to have incurred in the course of its investigation. The exhibit was not listed in the Joint Prehearing Stipulation and some parts of it may have applied to charges dropped when the charging document was amended. It was not admitted in evidence over objection. Mr. Dunphy testified that he totalled reasonable expenses at $981.16, but his breakdown of what the expenses were and how they were incurred was insufficient to relate the agency's financial expenditures to the sole charge remaining after the amendment. Respondent did not diminish that figure through cross-examination, but stipulated that $250.00 constituted the Department's reasonable expenses.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order finding Respondent guilty of the charged violations and requiring: That Respondent shall, within thirty days of the final order, remove from Lot 85 all fill from the Property, which has been placed within the landward extent of the Tributary of Mason Branch in accordance with the restoration plan, attached and incorporated as Exhibit I in the Amended Notice of Violation. All fill shall be removed down to natural, pre-fill elevations and gradings, and shall be disposed of in a site approved by the Department; and Within thirty days of the fill removal, Respondent shall plant a mixture of red maple, cypress, dahoon holly, tupelo and gum trees, spaced 10 feet apart. The trees should be three-gallon size. The cypress and tupelos should be planted in the lowest areas and the red maples should be planted in the highest areas. Within thirty days of the fill removal, Respondent shall tender $250 to the agency as costs. RECOMMENDED this 15th day of August, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1995.
Findings Of Fact The Petitioner, James M. Brown, d/b/a Ramrod Development Company, is seeking to develop as residential property, the subject land on Ramrod Key, Monroe County, Florida, adjacent to the Torch Ramrod Channel. The specific filling project which is the subject of this hearing involves Mariposa Road and Angelfish Road which lie within the property described above on Ramrod Key and which appear on a subdivision plat filed in the official records of Monroe County in 1960 and on revisions of that plat, one of which was filed in 1963 and the more recent of which was filed in 1969. Since February 9, 1960, Monroe County has been the owner of that roadway known as Mariposa Road located on Ramrod Key and which is depicted on the subject plat of Ramrod Shores, Marina Section. Since the county became the owner of that roadway in 1960, through the date of the hearing, it has never given authorization or approval for any person, firm or corporation to place fill material or any other matter upon that dedicated roadway (which includes a section of Angelfish Road as well as Mariposa Road). Monroe County, Florida, has given the Department of Environmental Regulation authorization to require removal of fill material placed on any dedicated county roadway in violation of any law or administrative rule of the Department. On January 27, 1977, the Department personnel visited the subject site and determined dredge and fill activities had indeed taken place on a tidal Red Mangrove fringe area on the shore line of Torch Ramrod Channel without an appropriate permit issued by the Department. The Petitioner, James M. Brown, in sworn testimony, in the earlier proceeding here involved (DOAH Case No. 78- 1234), admitted that since 1969 he has, on numerous occasions, placed fill material in the Mariposa and Angelfish Road areas, which are the subject matter of this proceeding. He also admitted doing so without a permit issued by the Department of Environmental Regulation (See testimony of Brown in DOAH Case No. 77-1409, Atwater vs. Department of Environmental Regulation). In the earlier proceeding involving the Petitioner, DOAH Case No. 78- 1234, Mr. Sayward Wing described the placing of fill on the northern end of Mariposa Road by Monroe County, but this area is not the area now in controversy, which is on the southern part of Mariposa Road from its intersection with Angelfish Road south to Old State Road 4A. Witness Wing in that proceeding did not observe the county or its agents or employees place any fill in the subject area of Mariposa or Angelfish Road. The fill placed on Mariposa Road, between Old State Road 4A and the intersection with Angelfish Road, by the Petitioner, contained approximately 96 cubic yards of fill as of January 27, 1977. The fill placed on Angelfish Road from the Mariposa Road intersection westerly approximately 50 feet, contained approximately 178 cubic yards of fill as of that same date. The area west of Mariposa Road where the dredge and fill work was performed is predominantly vegetated by red mangroves (rhizophora mangle). The red mangroves are then superseded by white mangroves (laguncularia racemosa), black mangroves (avicennia germinans), as well as transitional vegetation. The red mangroves are the dominant vegetative species in the area. These species are found in the vegetative index which defines the Department's jurisdiction in Section 17-4.02, Florida Administrative Code. Witnesses Meyer and Kurer observed large numbers of small fish, predominantly gambusia affinis, in the inundated mangrove area lying on the west side of Mariposa Road. A fringe of red mangroves 50 to 80 feet wide vegetates the area east of Mariposa Road, along the Torch Ramrod Channel shoreline. The sandy mud intertidal and shallow subtidal water bottoms in this area are vegetated by benthic algae and sea grasses. The red mangroves are also the dominant species in this area. Benthic algae (halimeda sp., penicillus sp., gracellaria sp.) and sea grasses (thallassia testudinum and halodule wrightii) are also found in the vegetative index contained in Section 17-4.02, Florida Administrative Code, which delineates the Department's jurisdiction over State waters. The sampling and observations conducted by witnesses Kurer and Meyer in this area yielded silver side anchovies, mosquito fish, killifish, lane snapper, toadfish, needlefish, blennies, barracuda, various juvenile fish species, stonecrabs, amphipods, blue crabs, pink shrimp, isopods, nemerteans, polychaetes, tunicates, gastropods, and bivalves. The mangroves described, as well as associated wetland vegetation found in the area, provide filtration of sediments and nutrients contained in stormwater run-off from adjacent upland areas, as well as from tidal flows. This filtering process is essential in maintaining water quality in the adjacent open bay estuarine or marine system. The nutrients in the tidal waters as well as run-off waters are stockpiled in the sediments retained by the mangrove roots and are transformed into vegetative leaf matter by the mangroves as they live and grow. The extensive root system of the mangroves and their associated vegetation also provides stabilization of estuarine shoreline sediments and attenuation of storm-generated tides. Mangrove wetlands provide unique and irreplaceable habitats for a wide variety of marine as well as upland wildlife species. The Petitioner's activities, conducted without the appropriate approval and permit, have resulted in the alteration of the chemical, physical and biological integrity of State waters in the area of Mariposa and Angelfish Roads by the destruction of wetlands which provide food and habitat for wildlife, and which provide a filtrative and assimilative capacity to remove nutrients and other pollutants from the adjacent bay waters. the discharge of fill on to the mangrove areas, in waters of the State, has resulted in harm and injury to the biological community that existed there before the activity was completed. Specifically, as the testimony of Mr. Helbling (a biologist and water quality expert) establishes, the mangrove community to the east of Mariposa Road was shown not to be in a stressed condition in 1977 or at the time of the hearing. Mr. Helbling's testimony also establishes, however, that the mangrove system to the west of Mariposa Road, in effect inland from the filled portion of the road, is now in a stressed condition as manifested by mangrove trees in this area which area dead, or in the process of dying. This stress is caused primarily by the fact that the waters in the mangrove system to the west of Mariposa Road are impounded by the fill and no longer experience tidal flow or exchange daily. Therefore, being impounded, they are becoming more and more saline through the process of evaporation, to the extent that the mangrove trees are being poisoned. The mangrove tree community was not in this stressed condition in 1977 when this witness first observed it, but is at the present time. The primary reason for the imminent loss of this mangrove community is thus due to Mariposa Road being filled to such a level that there is no longer any tidal exchange of water with Torch Ramrod Channel. Witness Kurer established that the proposed plan of restoration set forth in the Department's exhibit two in Case No. 78-1234 and which has been adopted and admitted into evidence herein, would constitute an acceptable resolution of the dispute at bar. Removal of the fill would allow tidal exchange across Mariposa and Angelfish Roads and allow the mangrove system to restore itself and contribute to the protection and enhancement of the productive and valuable marine resource system in the adjacent bay area. Thus, the discharge of fill on to the mangrove areas involved herein which is within waters of the State, has resulted in harm and injury to that biological community which existed there before the activity was commenced and completed. The quality of waters in the Florida Keys is directly related to the degree of shoreline development by activity such as that undertaken by the Petitioner. The greater the degree of shoreline alteration, then the greater the degree of deterioration in water quality and the greater damage to biological productivity. The mangroves, in addition to their valuable filtrative function, also contribute leaf or detrital matter to the surrounding State waters and estuarine system in the form of decayed leaf litter. This organic component forms the basis of the marine food chain and is used directly for food by a variety of marine organisms, including small fish. A variety of important commercial and sports fish species feed directly on the mangrove detritus or on those fish or other forms of marine life which themselves feed on the detrital matter. Consequently, the destruction of the mangroves contributes directly to the deterioration of water quality through the loss of their filtrative function, as well as to the deterioration of an economically and biologically important sports and commercial fishery. Consequently, the restoration plan proposed by the Department is more of a desirable alternative than leaving the fill in place, in that it would restore the mangrove vegetation which provides the filtrative, assimilative functions in removing nutrients and other pollutants, and also provides food and habitat for fish and wildlife. The Petitioner's activities continue to be a source of pollution which was created without an appropriate and valid permit issued by the Department.
Recommendation In consideration of the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses and pleadings and arguments of counsel, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order denying the application for an "after the fact" permit. That a Final Order be entered requiring the Petitioner to completely restore the unauthorized fill site to its original contours and elevations and to revegetate the affected area, pursuant to a restoration plan and compliance schedule approved by the Department, which restoration plan and compliance schedule should be supplied to the Department by the Petitioner within 20 days subsequent to the effective date of the Final Order herein; and that the Petitioner be required within 20 days following approval of the said restoration plan to commence the restoration work which shall be accomplished in such a fashion as to prevent further damage to the marine and estuarine environment involved. It is further required that Petitioner complete the said restoration plan and project within 60 days following the approval of the restoration plan by the Department. DONE AND ENTERED this 21st day of September, 1981, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981. COPIES FURNISHED: David Paul Horan, Esquire 513 Whitehead Street Key West, Florida 33040 H. Ray Allen, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The Petitioner is a family owned corporation. Arthur B. Lujan is the Petitioner's President and Chief Executive Officer. The Key Haven Development is a residential development presently composed of ten additions. The eleventh addition is proposed for construction on the submerged land which is the subject matter of this proceeding. The Key Haven Development is located on Raccoon Key adjacent to Stock Island in the Florida Keys. Nine of the Key Haven additions were developed by a former owner who, sometime prior to 1964, transferred title to Arthur B. Lujan. In 1964, 1965, and 1966, Mr. Lujan, as the Petitioner's President, made application with the Trustees of the Internal Improvement Trust Fund to purchase three tracts of submerged land which together form the area which is the subject of this proceeding. The Trustees sold the land to the Petitioner in three separate deeds for $300 per acre. The land area is located just offshore from the first ten additions of the Key Haven Development. Before the sale was approved, representatives of the Trustees viewed the subject property, and received information from representatives of the predecessor to the Florida Department of Natural Resources. Representatives of the Trustees were aware that the Petitioner proposed to dredge and fill the land area, and to develop it. It was the Trustees' assumption that the entire land area would be filled. The $300 price was set by the Trustees' appraiser. The appraisal was based upon sales of other submerged land in the Florida Keys by the Trustees. The appraisal was not based upon whether the land area would be filled, or what use it would ultimately be put to, but rather upon similar sales. This was contrary to the general policy exercised by the Trustees in making assessments, but was necessary because establishing a developed valuation, and establishing the cost of filling an area was extremely difficult with respect to submerged land in the Florida Keys. The deeds executed by the Trustees of the Internal Improvement Trust Fund do not contain any permit for dredge and fill projects. There is no promise contained in the deeds or elsewhere that dredging or filling would be allowed. Other deeds executed by the Trustees have contained such assurance. Petitioner made no effort to develop the subject property, and made no applications either to the Respondent or its predecessors, or to the United States Army Corps of Engineers until 1972. Petitioner obtained a building permit from Monroe County prior to filing the instant application. Whether the building permit would constitute approval of the project by local government cannot be gleaned from the evidence because the building permit was not offered into evidence. There is no evidence from which it can be determined what matters were considered by the County in issuing the building permit. No significant action was taken by the Respondent on the application until sometime during 1975 due to a statewide moratorium that had been imposed on all dredge and fill projects. During the course of informal proceedings before he Respondent, it became evident to the Petitioner that representatives of the Respondent intended to deny the application. The Petitioner, through his attorney, thus requested whether it would be necessary to submit a hydrographic survey which would have cost the Petitioner from $10,000 to $15,000. A representative of the Respondent advised the Petitioner that other effects of the project were so negative, that even if a hydrographic survey were very positive, the staff would recommend denial of the permit. Thus in order to save a considerable amount of money which would not have led to a favorable decision, the Petitioner elected not to have a hydrographic survey performed. By letter dated April 29, 1976, the Respondent issued its Notice of Intent to Deny the Permit, and advised the Petitioner that it could petition for a hearing pursuant to the provisions of Section 120.57, Florida Statutes. Petitioner proposes to fill approximately 150 acres of submerged land in Class III waters of the State of Florida. The location of the proposed project is depicted on maps which were submitted with Petitioner's dredge and fill application, and on an aerial photograph that was received in evidence as Respondent's Exhibit 3. Petitioner proposes to fill the area to four feet above sea level. Fill would be obtained through the dredging of eight canals and a boat basin or lagoon. Such additional fill as might be required would be trucked in from other areas. Waterfront residences would be constructed on the fill area. The canals would be connected to surrounding waters by a feeder canal, and by three foot culverts located at each end of each canal. The area which the Petitioner proposes to dredge and fill is submerged land which varies in depth from one to four feet. There are several hundred square miles of similar shallow flatlands in the area of the Florida Keys. Some dredging and filling has occurred in areas surrounding the proposed land, and the proposed landfill site has been damaged somewhat by these projects. The area is generally, however, in its natural condition. A large number and a good variety of corals are found in the area. The area provides a nursery and feeding ground for spiney lobster and stone crabs. There is also a large number and variety of aquatic plants in the area. The site is a habitat for shore and wading birds, and mangroves growing in the area provide a habitat for many species of birds. Larger diving birds utilize offshore portions of the site for feeding. The immediate effect of the proposed project would be to obliterate all marine plant and animal life in the area and to eliminate the bird habitat. After dredging and filling the area would recover somewhat, and some marine organisms would find an accommodating habitat in the proposed canals. The area would not, however, continue to support the same variety and number of plant and animal species as presently utilize the area. Canals were dredged in several of the earlier additions of the Key Haven subdivision. These canals are not precisely the same as those proposed by the Petitioner in the eleventh addition, but they do provide some insight into what will likely occur if this project is completed. The "standing crop" of vegetation in the existing canals is greater than the "standing crop" in the area which the Petitioner proposes to dredge and fill. "Standing crop" is a term used to identify the amount of vegetation that is present at a given moment. "Standing crop" considered alone is neither a positive nor a negative factor ecologically speaking. Depending upon what vegetation is present, and the diversity of vegetation, a high standing crop can in fact be a negative factor. "Productivity" is a term used to indicate the amount of plant or animal life that will be produced over a period of time. Productivity is a biologically more important term than is standing crop. The evidence was not clear as to whether the present canals or the proposed fill area is the more productive in terms of aquatic vegetation. It is apparent that the proposed fill area has a much greater diversity of plant life. The canals are dominated by a few species of aquatic vegetation. It is clear that the proposed fill area is much more productive in terms of animal life. The canals do not provide suitable nursery grounds for spiney lobster or stone crabs, and no corals have been found in the canals. Water quality at the proposed landfill site is presently very good. The proposed landfill and canals would have an adverse impact upon water quality in the area. The project will obstruct prevailing currents in the area, and erosion and shoaling are likely to occur on surrounding submerged lands on the northwest and northeast sides of the project. The canals are considerably deeper than the adjoining waters. There will not be an adequate flushing of water from the canals into the surrounding waters. The three foot culverts at the ends of the canals will serve to assist the transfer of waters from the canal to the surrounding waters; however, vertical mixing of waters within the proposed canals is not likely to occur, and water on the bottom of the proposed canals will tend not to flush. Waters in the area of the proposed landfill are constantly mixed presently due to the action of wind and tides. The canals will not be so subject to the action of the winds and the tides due to their depth, and also due to their orientation in relation to prevailing currents. The reduced exchange of water between the canals and surrounding waters will cause a trapping of nutrients from organic waste in the canals. An increase in nutrients causes an increase in plant growth. The plants produce oxygen but the decay of the plants consumes an equivalent amount of oxygen. During the afternoon oxygen will likely bubble up from the bottom of the proposed canals into the air, causing a depletion of oxygen in the canals, and most especially in the bottom levels of the proposed canals. A transfer of waters, or an infusion of oxygen from the air could compensate for such an oxygen deficiency, but these factors are greatly restricted in canals. This is especially true in deep canals, such as those proposed by the Petitioner. It is likely that dissolved oxygen levels in the proposed canals will be below state standards at various places and at various times. While dissolved oxygen deficiencies occasionally occur in natural conditions, it is not likely that such deficiencies would be found in open areas such as the proposed development site. Reduced oxygen levels in the proposed canals would have a negative effect upon the water quality of the area. Evidence was offered at the hearing which tends to show that several employees of the Respondent actively opposed the Petitioner's proposed project on the grounds that the project would have an adverse effect upon water quality in the area and upon natural resources in the area. Although there was a considerable delay in the processing of the Petitioner's application, no evidence was offered to establish that the delay was caused by any improper action or motivation on the part of the Respondent or any of its employees. The Petitioner has failed to provide reasonable assurance that the proposed dredge and fill project would not have an adverse effect upon water quality and natural resources in the area. The proposed project would serve the private interests of the Petitioner, who seeks to develop a residential community for profit, and the private interests of persons who might wish to have waterfront residences in the Florida Keys. The public interest would not be served by the proposed project. The public interest would be adversely effected by the project in that water quality in the area, and the natural resources of the area are likely to be adversely effected by the proposed project. Proposed Findings of Fact submitted by the Petitioner and the Respondent have been considered. Respecting Petitioner's Proposed Findings, Paragraphs 1 2, and 3 have been substantially adopted. Paragraph 4 has been substantially adopted, with the exception of the last sentence. It is true that Mr. Lujan testified as set out in the sentence; however, Mr. Weigel, who actually made the appraisal of the land that was sold by the Trustees to the Petitioner testified that the appraisal was not based upon the intended use of the land, but rather upon the going rate for submerged lands in the Florida Keys at the time. Paragraph 5 has been substantially adopted except that any inference in the paragraph that the Petitioner was not required to obtain a dredge and fill permit has been rejected. As to the last sentence of the paragraph, the word "inordinate" has been rejected, as not being supported by the evidence. Paragraph 6 has been adopted to some extent; however, any inference contained in the paragraph that the Respondent's employees acted improperly in opposing the Petitioner's application is not supported by the evidence. Any inference contained in the paragraph that representative of the Respondent wrongfully induced the Petitioner to avoid the expense of a hydrographic survey is also rejected as not being supported by the evidence. That portion of Paragraph 7 to the effect that the Trustees of the Internal Improvement Trust Fund apparently considered the "public interest" in making the determination to sell the submerged land to the Petitioner is adopted. The paragraph is in all other respects rejected as not being supported by the evidence, or as being legally irrelevant to the issues in this matter. Paragraph 8 contains a substantially accurate summary of several depositions which were offered into evidence in this case. To the extent that the paragraph contains a legal conclusion that the public interest would be benefited by the proposed project, the paragraph is rejected. The paragraph is further rejected insofar as it relates the conclusions of the persons deposed as to probable effects of the proposed project upon water quality in the area and natural resources of the area. This testimony is too remote in terms of time to have any probative value in this matter. Paragraph 9 contains an accurate summary of the deposition of William R. Weigel; however, insofar as the paragraph contains an inference that Mr. Weigel's appraisal of the subject land was based upon anything except sales of comparable submerged lands in the Florida Keys, the paragraph is rejected. Paragraph 10 contains an accurate summary of the deposition of Jack Buford. Paragraph 11 contains an accurate summary of the deposition of John Dubose. Paragraph 12 contains an accurate summary of the deposition of William Kidd. To the extent that Paragraphs 10 through 12 contain any conclusion that the Petitioner was not required to seek a permit with respect to his proposed project, the paragraphs are rejected. Paragraphs 13 and 14 are similarly rejected insofar as they contain any such conclusion. Paragraph 14 contains a very brief summary of the testimony of Doctor Rich. Insofar as Doctor Rich concluded that there would be no substantial adverse biological effects from the proposed projects, or no detriment to water quality, his testimony has been rejected due to the testimony of other witnesses. Paragraphs 15 and 16 have been substantially adopted. Paragraph 17 Is adopted in part but is rejected insofar as it contains any inference that no dredging and filling could ever occur in the subject area. The only project considered in this matter is the precise project proposed by the petitioner Whether a different sort of project without canals, or with shallower canals, or less filled area might be approved has not been considered. Paragraph 18 is rejected insofar as it contains a conclusion that the Petitioner is not required to obtain a permit for his proposed dredging and filling activities. Each paragraph of the Respondent's Proposed Findings has been substantially adopted herein. Summaries of witnesses' testimony contained in the Respondent's Proposed Findings are accurate.
Findings Of Fact The Parties. The Petitioners, Joseph and Lena Smith, Eugene and Anna Colwell, and Jerry and Brenda Harris, are littoral owners and operators of sports fishing facilities on Orange Lake, a freshwater body of approximately 7,000 acres of open water and 15,000 acres of associated wetlands, whose southern margin constitutes the boundary between Alachua and Marion Counties in north central Florida. Respondent, the St. Johns River Water Management District (hereinafter referred to as the "District"), is a special taxing district created by Chapter 373, Florida Statutes, charged with the statutory responsibility for the management of water and related land resources; the promotion of conservation, development, and proper utilization of surface and ground water; and the preservation of natural resources, fish and wildlife, pursuant to Chapter 373, Florida Statutes. Intervenor, the Sierra Club, Inc. (hereinafter referred to as "Sierra"), is a not-for-profit California corporation registered to do business within the State of Florida. Sierra is an international corporation whose purpose is to explore, enjoy and protect the natural resources of the earth. Intervenor, Florida Defenders of the Environment, Inc. (hereinafter referred to as "Florida Defenders"), is a not-for-profit Florida corporation whose purpose is to preserve and restore Florida's natural resources. Intervenor, the Florida Department of Environmental Protection (hereinafter referred to as "DEP"), is an agency of the State of Florida charged with the responsibility of controlling and prohibiting pollution of the air and water of the State of Florida. See Chapter 403, Florida Statutes. DEP is also charged with responsibility for management of the Paynes Prairie State Preserve. Section 373.026, Florida Statutes. Intervenor, the Attorney General of the State of Florida (hereinafter referred to as the "Attorney General"), sits as a Trustee of the sovereignty submerged lands of the State and as one of the legal owners of the State's property including the Paynes Prairie State Preserve. The Challenged Rules. The District issued an order on November 7, 1993, authorizing the publication of a notice of intent to amend Chapter 40C-2, Florida Administrative Code, by adopting proposed Rule 40C-2.302, Florida Administrative Code, and amending Rule 40C-2.051(6), Florida Administrative Code (hereinafter jointly referred to as the "Challenged Rules"). Proposed Rule 40C-2.302, Florida Administrative Code (hereinafter individually referred to as the "Reservation Rule"), provides: 40C-2.302 Reservation of Water From Use. The Governing Board finds that reserving a certain portion of the surface water flow through Prairie Creek and Camps Canal south of Newnans Lake in Alachua County, Florida, is necessary in order to protect the fish and wildlife which utilize the Paynes Prairie State Preserve, in Alachua County, Florida. The Board therefore reserves from use by permit applicants that portion of surface water flow in Prairie Creek and Camps Canal that drains by gravity through an existing multiple culvert structure into Paynes Prairie. this reservation is for an average flow of [35] cubic fee per second (23 million gallons per day_ representing approximately forty five per cent (45 percent) of the calculated historic flow of surface water through Prairie Creek and Camps Canal. The specific authority for the Reservation Rule is Sections 373.044, 373.113, 373.171, 373.216 and 373.219, Florida Statutes. The law implemented by the Reservation Rule is Sections 373.219 and 373.223, Florida Statutes. The proposed amendment to Rule 40C-2.051, Florida Administrative Code (hereinafter individually referred to as the "Exemption Rule"), provides, in pertinent part: 40C-5.2.051 Exemptions. No permit shall be required under the provisions of this rule for the following water uses: through (5) No change (6) Water, whether withdrawn or diverted, when used for purposes of protection of fish and wildlife or the public health and safety when and where the Governing Board has, by regulation, reserved said water from use by permit applicant pursuant to Subsection 373.223(3), F.S. The specific authority for the Exemption rule is Sections 373.044, 373.113 and 373.171, Florida Statutes. The law implemented by the Exemption Rule is Sections 373.103, 373.171, 373.216, 373.219, 403.501 et seq. and 288.501 et seq., Florida Statutes. Orange Creek Basin. Orange Creek Basin is the name given to the hydrological features of approximately 400 square miles of Alachua, Putnam and Marion Counties, Florida. Orange Creek Basin is a major sub-basin of the Lower Ocklawaha River Basin. Surface water in the Orange Creek Basin flows generally in a north to south direction Orange Creek Basin is made up of several sub-basins, including Newnans Lake, Paynes Prairie, Orange Lake and Lochloosa Lake sub-basins. Surface water within the approximately 100 square miles of Newnans Lake sub-basin drains into Newnans Lake. When sufficiently high, water in Newnans Lake discharges over a weir structure from the southern end of the lake into Prairie Creek. The weir structure at the southern end of Newnans Lake may be adjusted to control the amount of water flowing into Prairie Creek. The weir was installed in 1966. It was adjusted by the Florida Game and Freshwater Fish Commission in 1976. Water flows south into Prairie Creek, the south and southwest through Prairie Creek to two man-made structures. The first is a gated culvert structure consisting of 3 Culverts (the "Camps Canal Culverts"), through which some of the Prairie Creek water enters Paynes Prairie. The second man-made feature is a levee and a canal named Camps Canal. The levee diverts water in Prairie Creek, which does not flow into Paynes Prairie by gravity, through Camps Canal to the south to the River Styx, which flows into Orange Lake. If the elevation of surface water in Prairie Creek exceeds 58.91 feet National Geodetic Vertical Datum (hereinafter referred to as "NGVD"), a portion of the volume of Prairie Creek will flow, by gravity, into Paynes Prairie through the Camps Canal Culverts. The Paynes Prairie sub-basin covers an area of approximately 49 square miles. Surface water in this sub-basin drains into a natural geological feature known as Alachua Sink. Surface water in the approximately 56 square mile Orange Lake sub- basin flows into Orange Lake. Surface water flows out of Orange Lake through Orange Creek. Outflow is controlled by Orange Lake Dam. The Orange Lake Dam has a fixed crest elevation of 58 feet NGVD. Water levels in Orange Lake must exceed 58 feet NGVD before there is surface water outflow from Orange Lake. Surface water within the approximately 75 square mile Lochloosa Lake sub-basin drains into Lochloosa Lake. Lochloosa Lake has two outlets: Lochloosa Slough in the east and Cross Creek in the south. Cross Creek connects Lochloosa Lake to Orange Lake. Paynes Prairie State Preserve. Prior to the construction of the weir at the outlet from Newnans Lake to Prairie Creek, all surface water from Newnans Lake flowed from Newnans Lake to Prairie Creek unimpeded. Prior to 1927 all surface water in Prairie Creek flowed south into an area known as Paynes Prairie. Paynes Prairie is located in Alachua County. All water in Prairie Creek entered Paynes Prairie and flowed across Paynes Prairie to Alachua Sink. Alachua Sink is a natural geological feature located in the north- central portion of Paynes Prairie. At Alachua Sink surface water enters the Florida aquifer. In 1927 a levee was constructed around the eastern boundary of Paynes Prairie, and Camps Canal was excavated in order to divert water from Paynes Prairie. Due to the levee, water in Prairie Creek was diverted into Camps Canal beginning in approximately 1927. The water flowed into the River Styx and then into Orange Lake. Canals and levees were also constructed within Paynes Prairie to convey surface water in Paynes Prairie into Alachua Sink and Camps Canal. The modifications to Paynes Prairie made in 1927 were intended to drain Paynes Prairie so that the land could be utilized for agricultural purposes, including the raising of cattle. Paynes Prairie continued to be used primarily for the raising of cattle between 1927 and early 1970. In 1970, the State of Florida began acquiring parts of Paynes Prairie. Property acquired by the State was used to create the Paynes Prairie State Preserve (hereinafter referred to as the "Preserve"). Land is still being acquired by the State. The Preserve currently consists of approximately 20,600 acres. Approximately 18,000 acres of the Preserve were acquired within the first 4 years after acquisitions by the State began. Approximately 12,000 acres are considered wetlands. Two major highways, U.S. Highway 441 and Interstate 75 run north-south across the middle and western portion of Paynes Prairie. U.S. 441 was constructed in 1927 and I-75 was constructed in 1964. In 1975 the State of Florida's Department of Natural Resources (which is now DEP) breached the levee at Camps Canal in order to restore part of the water flow from Prairie Creek to the Preserve. In 1979 flashboard riser Culverts were placed in the breach in the Camps Canal levee. In 1988 the Camps Canal Culverts were constructed. The Preserve, a unique land feature, was designated a National Natural Landmark in 1974 by the United States Department of the Interior. No consumptive use permit concerning water that flows into Paynes Prairie or the Preserve has been issued by the District. No consumptive use permits have been issued by the District for surface water withdrawals from Newnans Lake, Prairie Creek or Orange Creek. The Current General Hydrologic Condition of the Preserve. The Preserve is one of the largest continuous wetland systems in Florida and the Southeastern United States. The Preserve and Paynes Prairie constitute one of the largest wetland areas formed by the collapse of a sinkhole, Alachua Sink. Since 1975, at least some water has flowed into the Preserve from Prairie Creek through the Camps Canal Culverts and its predecessors. The "inverts" of the Prairie Creek-Camps Canal Culverts are above the creek-canal bottom. This means that if water in Prairie Creek does not reach a certain level, no water will flow through the Camps Canal Culverts into the Preserve. Under these conditions, all water in Prairie Creek will flow through Camps Canal and eventually to Orange Lake. The amount of water flowing through the Camps Canal Culverts is also limited to a maximum amount due to the size of the Culverts. The exact amount of water that may flow through the Camps Canal Culverts into the Preserve depends on the amount of water in Prairie Creek coming from Newnans Lake and the capacity of the Culverts to move the water. Water flowing into the Preserve through the Camps Canal Culverts constitutes approximately 50 percent of the surface water entering the Preserve. After water flows into the Preserve through the Camps Canal Culverts it flows in a broad, shallow path, referred to as "sheetflow," over the eastern portion of the Preserve. The sheetflow from Camps Canal Culverts creates approximately 550 to 600 acres of shallow marsh community. The water eventually flows into an area known as Alachua Lake in the central portion of the Preserve. Water discharging from Alachua Lake flows through a water control structure consisting of four gated Culverts, known as the Main Structure, into Alachua Sink. Water also enters the Preserve from the north through a tributary known as Sweetwater Branch. Water flows through Sweetwater Branch into Alachua Sink. Sweetwater Branch is channelized over its entire length, preventing water from reaching into the Preserve or Alachua Lake. The District's Purpose in Adopting, and the District's Interpretation of, the Challenged Rules. The District's intent in adopting the Challenge Rules was to reserve water which the District had concluded is required for the protection of fish and wildlife in Paynes Prairie. The District is attempting to carry out its intent by providing in the Reservation Rule that whatever amount of water that may flow through the Camps Canal Culverts by gravity into the Preserve may not be used for other purposes. The District is further attempting to carry out its intent by providing in the Exemption Rule that any amount of water that has been reserved by the District because it is required for the protection of fish and wildlife pursuant to Section 373.223(3), Florida Statutes, exempt from the consumptive use permit process. The Reservation Rule is not intended to reserve a specific quantity of water for the Preserve. Rather, the Reservation Rule reserves only that amount of water that flows through the Camps Canal Culverts by force of gravity. The intent is allow the natural existing hydrologic regime of the Preserve to continue. The quantity of the water reserved by the Reservation Rule is identified, in part, as follows: The Governing Board finds that reserving a certain portion of the surface water flow through Prairie Creek and Camps Canal south of Newnans Lake in Alachua County, Florida, is necessary in order to protect the fish and wildlife which utilize the Paynes Prairie State Preserve, in Alachua County, Florida. The Board therefore reserves from use by permit applicants that portion of surface water flow in Prairie Creek and Camps Canal that drains by gravity through an existing multiple culvert structure into Paynes Prairie. . . . [Emphasis added]. The last sentence of the Reservation Rule goes on to proved: This reservation is for an average flow of [35] cubic feet per second (23 million gallons per day) representing approximately forty five per cent (45 percent) of the calculated historic flow of surface water through Prairie Creek and Camps Canal. This portion of the Reservation Rule was not included by the District to establish a minimum and/or maximum quantity of water that is being reserved for the protection of fish and wildlife in the Preserve. This portion of the Reservation Rule represents a very condensed summary of the historical hydrologic data relied upon by the District in deciding to reserve water for the Preserve's fish and wildlife. The Exemption Rule was intended to make clear that anytime the District reserves water which it determines is required to protect fish and wildlife or the public safety, that no consumptive use permit is necessary. The District's Determination that Water is Necessary for the Protection of Fish and Wildlife in Paynes Prairie. In reaching its decision that the quantity of water flowing through the Camps Canal Culverts by force of gravity into the Preserve is required for the protection of the fish and wildlife of the Preserve, the District relied upon a study of the Orange Creek Basin which District staff had begun in the 1980s. There were three objectives for the Orange Creek Basin study: (a) the first objective of the study was to develop a predictive hydrologic model that could be used to predict water levels throughout the basin and the water courses that connect the various major lakes and prairie systems; (b) the second objective of the Orange Creek Basin study was to develop environmental and hydrologic criteria that could be used to evaluate the environmental impacts of different water management alternatives in the basin; and (c) the third objective was to look at alternatives for management of water within the District. Substantial evidence concerning the manner in which the Orange Creek Basin study was conducted, the results of the study and the rationale for the District's conclusion that the quantity of water flowing through the Camps Canal Culverts by force of gravity is required to protect the fish and wildlife of the Preserve was presented during the final hearing of this case by the District. The evidence presented by the District to support a finding that the quantity of water flowing through the Camps Canal Culverts by force of gravity is required to protect the fish and wildlife of the Preserve was not rebutted by competent subs by the Petitioners. The only witness called by the Petitioners was an expert in hydrology. The Petitioners' expert only suggested that he had questions about the District's hydrologic study. He was unable, however, to testify that the hydrologic study relied on by the District was unreasonable or inaccurate. The Petitioners also offered no evidence to counter the testimony of the District's expert on the environment of Paynes Prairie. The testimony of the District's expert proved that, even without the results of the hydrologic study conducted by the District, the evidence concerning the Preserve's environment supports a finding that the water reserved by the Reservation Rule is required for the protection of fish and wildlife. Generally, the evidence proved that, if the water being reserved is not continued to allow to flow naturally into the Preserve, the range of water fluctuations and the resulting natural impact of the environment of the Preserve will not be achieved. There exist in the Preserve currently, a range of plant communities and fish and wildlife. The nature of those communities, fish and wildlife depends on the amount of water in the communities. The communities range from those existing in of upland areas, which have the lowest levels of water, down to deep marshes, where water levels are the greatest. In between are emergent marsh (also called "shallow marsh"), cypress swamps, mixed scrub-shrub wetland, wet prairie, old filed, hudric forest, mesic forest and xeric community. The various types of communities are is a state of fluctuation depending on the levels of water flowing into the Preserve. The evidence presented by the District, and was uncontroverted by the Petitioners, proved that these fluctuations are environmentally desirable; that natural fluctuations of water levels in the Preserve are required for the protection of fish and wildlife. It is for this reason, therefore, that the District decided to reserve the amount of water flowing by gravity through the Camps Canal Culverts, and not some specified volume. The Rationale for the District's Finding that Water is Required for the Protection of Fish and Wildlife. Although the District and some of the Intervenors have prosed several findings of fact that support the ultimate finding of fact that the water reserved by the Reservation Rule is required to protect fish and wildlife. Those findings of fact are subordinate to the ultimate relevant fact in this case. Therefore, rather than rewrite all of those subordinate facts, the District's subordinate findings of fact (which cover those subordinate findings suggested by the Intervenors) will be quoted and adopted in this Final Order. The findings of fact of the District quoted and adopted herein which relate to the hydrologic portion of the are as follows. The findings have been modified to reflect terms used throughout this Final Order. The findings of the District adopted are District findings of fact 44 through 74: Surface water hydrologic models are a tool used by water resource professionals to enable them to simulate or calculate certain characteristics of a hydrologic system from data that relates to or is collected from within that system. T. 65, 66, 90, 91, 779. In this basin, the staff of the District developed a surface water model in order to calculate anticipated water levels and discharge volumes at various points throughout the basin expected to be associated with several alternative water management strategies. T. 90, 91, SJ Ex 1 p 27. The specific model used by the District is the Streamflow Synthesis and Reservoir Regulation (SSARR) mathematical model, developed by the U.S. Army Corps of Engineers. This particular model is generally accepted and used in the field of hydrology for the purposes for which it was used here by the District staff. T. 90, 91, SJ Ex 1 p 27. The model combines two types of data, the first of which are "fixed basin parameters" such as drainage area, soil moisture run-off relationships, and storage capacity of the water bodies in the basin. Fixed basin parameters do not change over time. T. 98, 99, SJ Ex 1 pp 32-37. The second type of data used by the model is "time series" data such as rainfall, evaporation, lake elevations and discharges at several points throughout the basin. Time series data does change over time. T. 98, 99, SJ Ex 1 pp 38-40. Rainfall data for the basin is the most important input element for the model because rainfall drives the system from a hydrologic perspective. T. 95. Rainfall data from 5 recording stations scattered over the basin were utilized, with one station located at the University of Florida in Gainesville yielding data for more than 50 years, although only data for the 50 year period from 1942-1991 was used in the model. T. 96, 97, SJ Ex 1 pp 38, 39, 62, 175. The other 4 rainfall recording stations used in the model have recorded rainfall for periods ranging from 11 years to 37 years. SJ Ex 1 p 39. In a basin the size of the Orange Creek Basin, day to day rainfall amounts may vary from one recording station to another, however, on an annualized basis, rainfall amounts are relatively consistent between the rainfall recording stations utilized in the District's model. T. 97, 98, 184, 727. Both the number and location of rainfall recording stations used for the model are adequate to characterize rainfall for the basin. T. 97, 98, 184. Fifty years of hydrologic data were utilized by the District in the model, because corresponding records existed for rainfall, lake levels, and discharge for this period of time. In addition, a 50 year period is more likely to exhibit a full range of hydrologic conditions, such as droughts and floods, than a shorter increment of time would. T. 104. The model utilizes both the fixed basin parameters and the time series data to calculate an associated lake level for any of the lakes in the basin or a discharge measurement at one of several points in the basin for any particular day during the 50 year period represented by the hydrologic data on which the model is based. T. 98-100. The model was initially run to calculate several hydrologic values with existing conditions in place. Existing conditions, for purposes of comparison with other alternatives, assumes the Newnans Lake weir to be in place, the gates to the Camps Canal Culverts to be in an open position and the gates to the main structure Culverts in the Preserve to be in an open position. T. 99, SJ Ex 1 p 83. For all scenarios examined, the model assumes existing land uses to be in place, in all years simulated, in order to allow consistent comparisons of hydrologic conditions over the 50 years for which data was available. T. 134, 135. In the "existing conditions" scenario the model calculates the volume of water discharging from Newnans Lake southward into Prairie Creek for each day during the 50 year period from 1942-1991. T. 100. Discharge measurements were made by District staff at the downstream end of the Camps Canal Culverts from which a rating curve was developed for the structure. T. 101, 102, SJ Ex 1 pp 33, 36. A rating curve is a means by which the flow capacity of a water control structure such as a culvert may be calculated. T. 101, 102. Using the rating curve developed by District staff for the Camps Canal Culverts, the model, having calculated the volume of water moving from Newnans Lake into Prairie Creek, can then calculate the volume of water passing through the Culverts at the Camps Canal Culverts into the Preserve versus the volume moving on southward through Camps Canal to Orange Lake for each day or year during the 50 year period from 1942-1991. T. 101, 102, SJ Ex 1 p 84, Appendix Table E-45. Having calculated the annual volume of surface water entering the Preserve and the annual volume moving into and through Camps Canal to Orange Lake for each of the 50 years between 1942- 1991, District staff then divided the 50 year totals for each by 50 to arrive at a yearly average volume of water going to the Preserve versus a yearly average volume going through Camps Canal to Orange Lake, under existing conditions. T. 101-104, SJ Ex 1 p 84, Appendix Table E-45. Based on the volumes calculated for the 50 year period between 1942-1991, on average, 45 percent of Prairie Creek flow enters Preserve through the Camps Canal Culverts under existing conditions. This equates to 35 cubic feet per second (cfs), or 23 million gallons per day (mgd). T. 103, 605, 606, SJ Ex 1 p 84, Appendix Table E-45. Also based on the volumes calculated for the 50 year period between 1942-1991, on average, 55 percent of Prairie Creek flow goes into Camps Canal and moves on southward to the River Styx and then to Orange Lake under existing conditions. T. 103, SJ Ex 1 Appendix Table E-45. Making a calculation of flow based on 50 years of historic hydrologic data does not guarantee that the next 50 years will be identical to the period during which the calculation was developed, however, it is reasonable to assume that the next 50 years will be statistically similar to the previous 50 years and that hydrologic conditions, on average, will be the same. T. 104, 143. Both the general methodology and the specific model used by the District to quantify the average volume of flow entering the Preserve under existing conditions, which also represents the volume of flow which the rule would reserve for fish and wildlife which use the Preserve, are based on logic and accepted scientific principles. T. 90, 91, 97, 102, 128, 729. The rule in issue does not reserve a specific amount of water for the protection of fish and wildlife using the Preserve, rather, it reserves the amount which will flow by gravity through the existing Camps Canal Culverts with the gates in an open position, which will in essence, maintain the existing volume of flow into the Preserve. T. 604, 605, 624. Thirty-five cfs does not necessarily represent the specific volume of water that will flow into Preserve on a given day, rather, the specific volume would be dependent on hydrologic conditions on that given day. T. 105, 106. Nevertheless, 45 percent of flow, or 35 cfs, or 23 mgd, represents a reasonably accurate calculation, based on the data available, of the average volume of Prairie Creek flow which will enter the Preserve by gravity pursuant to the Reservation Rule. T. 101- 104, 638, SJ Ex 1. With the existing conditions hydrologic regime which the Reservation Rule would continue in place, the model calculates that the mean elevation of Orange Lake would be 57.26 feet NGVD. T. 121, 122, SJ Ex 8 (arithmetic mean). If no Prairie Creek flow were allowed to enter the Preserve and all of its flow went to Orange Lake, the model calculates the mean elevation of Orange Lake to be 57.51 feet NGVD. T. 121, 122, SJ Ex 8 (arithmetic mean). Thus, the mean elevation of Orange Lake rises by only 0.25 feet when all of the Prairie Creek flow is diverted to Orange Lake. SJ Ex 8. The impact of a 0.25 feet change in the mean elevation of Orange Lake from a hydrologic perspective is small given the 11 feet fluctuation in elevations that has occurred naturally over time in the lake. T. 125. By contrast, if no Prairie Creek flow were allowed to enter the Preserve and all of its flow went to Orange Lake, the mean elevation of water levels within the Preserve, as calculated by the model, would decline by 0.65 feet. SJ Ex 7. Eliminating all Prairie Creek flow from the Preserve would decrease the amount of wetted acreage in the central portion of the prairie by up to 2400 acres. T. 203, SJ Ex 1 p 131, SJ Ex 6. In addition, the acreage wetted in the eastern lobe of the Preserve by the sheetflow of Prairie Creek water as it moves from the Camps Canal Culverts to Alachua Lake would also be eliminated. T. 116, SJ Ex 1 p 131. The findings of fact of the District quoted and adopted herein which relate to the environment of, and the alternative course of action considered for, the Preserve are as follows. The findings have been modified to reflect terms used throughout this Final Order. The findings of the District adopted are District findings of fact 79 through 127: The eastern and western lobes of the Preserve are approximately the same elevation and have similar gradients; however, the plant communities within the eastern lobe differ from the plant communities in the western lobe. The plant community within the eastern lobe is predominantly a shallow marsh community while the plant community within the western lobe varies from wet prairie to old field. T. 262, 263; SJ Exs 3, 10B, 10H. For the western lobe of the Preserve, consisting of the area west of U.S. Highway 441, rainfall is the only source of water except when extremely high water levels occur in Alachua Lake. T. 263, 272. When extremely high water levels occur on Alachua Lake water can backflow through the culverts under U.S. Highway 441 and Interstate Highway 75 and inundate the western lobe. T. 272. The eastern lobe of the Preserve is dependent upon sheetflow from Prairie Creek for its source of water. T. 263. Prior to the construction of Cones Levee the sheetflow from Prairie Creek inundated approximately 1,200 acres of the eastern lobe. Today, however, sheetflow inundates directly 600 acres and indirectly another 600 acres in the eastern lobe. T. 264, 265; SJ Ex 10B. Without the Prairie Creek sheetflow, the biological character of the eastern lobe would change to resemble the more terrestrial nature of the western lobe. T. 263, 272, 518. The fish and wildlife inhabiting the Preserve are totally dependent upon its surface water hydrology. T. 276. Of the 21 species of plants living within the Preserve that are listed by the federal government or the State of Florida as endangered, threatened or species of special concern, four species are wetland species. T. 268, 358, 359, 360. Twenty species of animals living on the Preserve are listed by the federal government or the State of Florida as endangered, threatened or species of special concern. Seventeen of these species are wetland dependent. T. 269. Birds, including a number of species listed as endangered or threatened such as great blue herons, woodstorks, anhingas, limpkins, sandhill cranes and ospreys, use the shrub communities around Alachua Lake, the cypress swamp in the eastern lobe and other areas of the eastern lobe for breeding, nesting, and foraging. T. 269, 270, 271, 277, 364, 365. Several species of migratory ducks overwinter in the central area of the Preserve, particularly in the shrub wetland communities around Alachua Lake. Without the flow of water from Prairie Creek the open water in Alachua Lake would be lost and consequently, the overwintering habitat for the ducks would be lost. T. 240, 270, 518. Immature bald eagles use the eastern lobe wetlands for foraging. T. 270. Additionally, the northern harrier, American kestrel and peragrine falcon use wetlands within the Preserve as foraging habitat. T. 364, 365. Mammals, such as river otters, brown water rat, bobcats, bats and long-tailed weasels, use the wetlands within the Preserve, and the eastern lobe particularly, as breeding, nesting, and/or foraging habitat. Reptiles, such as the American alligator, live in the Preserve. T. 270-271, 375, 377-378; SJ Ex 14. The diversity and abundance of animals living in or using the Preserve is greater in the eastern lobe and central area than the western lobe. T. 273, 274. Different species of birds frequent the western lobe. Typically, species more indicative of a drier terrestrial environment are found in the western lobe. T. 272. If the Prairie Creek flow is diverted from the Preserve, the eastern lobe would be driven towards a drier, terrestrial habitat and the functions of the eastern lobe wetlands would be totally lost. T. 277. The sheetflow across the eastern lobe is a unique feature of the Preserve, and without this sheetflow animals such as the endangered brown water rat would not live there. T. 277. Without the Prairie Creek sheetflow, animals dependent on Alachua Lake and the wetlands, such as the brown water rat and the woodstork, would have to find other areas to live, forage, breed and nest due to the loss of wetlands and open water habitat. T. 277, 518. When the water levels in the Preserve are low and wetlands are lost, the birds that depend on the wetlands for nesting will not nest in the Preserve nor elsewhere. T. 532. The wetland communities within the Preserve require a range of water level fluctuations which includes periods of high water levels, average water levels and low water levels. Wetlands must remain wet long enough to exclude upland plants and to conserve hydric soils, yet sufficiently dry often enough to allow germination of wetland plants and the compaction and oxidation of flocculent sediments. T. 293, 294, 298, 299, 310, 311; SJ Ex 1 pp. 23-25. Periods of high water levels maintain lower swamp and shallow marsh habitats, facilitate the dispersal of the seeds of wetland plants, allow wetland species that normally occur at lower elevations to move up into the forested communities, prevent the encroachment of upland species into the upper wetland area, and advance the transportation of organic matter from uplands to wetlands. Inundation of the floodplain and forested communities provide nesting, spawning, refugia, and foraging habitat for fish and other aquatic organisms. T. 294, 296, 310, 311; SJ Ex 1 pp 23- 25. The frequency, timing and duration of high water levels influence the composition and survival of wetland forests. T. 310, 311; SJ Ex 1 p 23. Periods of average water levels create and maintain organic soils and maintain wetland habitat for wetland dependent wildlife. T. 293, 297; SJ Ex 1 p 25. Periods of low water levels rejuvenate floodplain wetlands by allowing seed germination and growth of wetland plants. Seeds of many wetland plant species require saturated soils without standing water in order to germinate. T. 291, 293, 298, 299; SJ Ex 1 pp 24, 25. Periods of low water levels increase the rate of aerobic microbial breakdown and decomposition of organic sediments, and allows the consolidation and compaction of flocculent organic sediments. The consolidation, compaction and decomposition of flocculent organic sediments improves substrates for fish nesting and seed germination. T. 298, 299; SJ Ex 1 pp 24-25. Upland animals use the wetlands during periods of low water levels for foraging and breeding. T. 298, 299. Three elevation transects were used by District staff to identify the elevations of plant communities on the Preserve and develop environmental criteria for the Preserve floodplain. T. 302, 305-306; SJ Ex 1 pp 26, 27, 31, 60. Ecological criteria were developed by District staff to accommodate the hydroperiod requirements of lake and wetland biota. The ecological criteria consisted of hydrologic duration, i.e. how long an area is flooded; and recurrence intervals, i.e. how often an area is flooded. T. 304, 309; SJ Ex 1 pp 23, 61. Maintaining appropriate hydrologic durations and recurrence intervals for plant communities enables the plant communities to support populations of fish and wildlife. T. 307, 312. The District identified the following five significant water management levels: infrequent high water level, frequent high water level, minimum average water level, frequent low water level, and infrequent low water level. The water management levels characterize zones along the elevation gradient of the Preserve. T. 307, 308; SJ Ex 1 p 61. The five different recurrence intervals and the associated hydrologic durations became the hydrologic criteria used by District staff for the water management levels. T. 312. The District evaluated six water management alternatives for the Preserve: the "existing conditions" alternative which simulated the current morphometry of the Paynes Prairie sub-basin; the "total restoration" alternative, under which all the Prairie Creek flow is restored to Paynes Prairie; the "50/50 management" alternative, under which the inflow capacity at the Camps Canal Culvert is reduced by 50 percent and the outflow capacity at the main structure at Alachua Lake is reduced by 50 percent; the "elevation threshold" alternative, under which when the water level at Newnans lake is at 66 feet NGVD or above and the water level at Orange Lake is at 56 feet NGVD or below, then the inflow structure at Camps Canal Culvert is reduced by 50 percent while the outflow capacity at the main structure is maintained at 100 percent; the "Sweetwater Branch" alternative, under which flow from Prairie Creek is replaced by Sweetwater Branch flow; and the "no restoration" alternative, under which the entire flow from Prairie Creek is diverted to Orange Lake. T. 313, 314; SJ Ex 1 p 119. Based upon the hydrologic durations and recurrence intervals defined by the ecologic criteria, the District determined five water management levels for each water management alternative. SJ Ex 1 p 61. The five water management levels and the associated recurrence intervals and hydrologic durations form a fluctuation management regime. The fluctuation management regime for each water management alternative was evaluated with respect to the existing biological features of the aquatic and wetland communities of the Paynes Prairie sub-basin. SJ Ex 1 pp 61, 124, 125. Under the total restoration alternative the water levels on the Preserve would rise thereby improving the hydrologic regime on the prairie, but the possibility of flooding and damaging U.S. Highway 441 would also increase. The minimum average water level of Orange Lake would decrease by 0.67 feet. T. 331, 333; SJ Ex 1 pp 125-130; SJ Ex 8. The no restoration alternative would not satisfy all the hydrologic criteria. The minimum average water level on the Preserve would decrease by 1.01 feet under this alternative. Under this alternative the acreage inundated by the minimum average water level is reduced by approximately 2,400 acres. Additional wetland acres are lost due to the absence of the Prairie Creek sheetflow across the eastern lobe. The minimum average water level in Orange Lake would increase by 0.16 of a foot. T. 324, 334-336; SJ Ex 1 pp 124, 125, 131; SJ Ex 8. Eliminating the flow of Prairie Creek into Paynes Prairie would be detrimental to the current and future biological conditions on the Preserve. SJ Ex 1 p 131. Under the 50/50 management alternative the average flow from Prairie Creek would be reduced from 45 percent to 22.5 percent and the outflow to Alachua Sink would be reduced by 26 percent. T. 337; SJ Ex 1 p 131. The high water levels and the low water levels increase slightly within the Preserve and Orange Lake under the 50/50 management alternative; however, the residence time of water and the concentration of nutrients, including phosphorous and nitrogen, would increase thereby degrading water quality within the Preserve. T. 338, 340, 341; SJ Ex 1 pp 124, 125, 127, 128, 131, 132; SJ Exs 7 and 8. The reduction of sheetflow from Prairie Creek under the 50/50 management alternative would adversely affect the wetlands in the eastern lobe. SJ Ex 1 p 132. Under the elevation threshold management alternative water levels within the Preserve would decrease. The Preserve would receive less water during some periods of naturally high flows reducing the duration and frequency of inundation in the eastern lobe wetlands and, therefore, negatively impacting wildlife dependent upon seasonal high flows. T. 344; SJ Ex 1 p 133; SJ Ex 7. The flow provided by Sweetwater Branch provides approximately 15 percent of the Preserve's average inflow, whereas Prairie Creek provides approximately 50 percent of the Preserve's average inflow. T. 346. Sweetwater Branch is more or less confined to a channel and discharges into Alachua Sink bypassing the Preserve and its eastern lobe. T. 347. Under the Sweetwater Branch alternative the eastern lobe would be deprived of the sheetflow essential to the maintenance of wetlands and the wildlife in the eastern lobe. The eastern lobe would dry out and the plant communities would change to old field or wet prairie. The functions of the plant communities to wildlife would also change under this alternative. T. 347. The Sweetwater Branch alternative would not support fish and wildlife in the eastern lobe of the Preserve. T. 347. The water quality of Sweetwater Branch is poor. Sweetwater Branch has higher concentrations of nitrogen and phosphorous than Prairie Creek. If the nutrient-rich Sweetwater Branch water was diverted onto the Preserve the types and abundances of vegetative communities would change from native vegetation to monocultures of nuisance vegetation that thrive in nutrient-rich environments. T. 346-349; SJ Ex 1 pp 133-134. The existing conditions alternative provides over the long term an average of approximately 45 percent of the Prairie Creek flow by gravity flow through the Camps Canal Culvert to the Preserve. T. 355, 356; SJ Ex 1 p 121. Under the existing conditions alternative, the five hydrologic criteria for both the Preserve and Orange Lake are met and the water level elevations meet the desired recurrence intervals and hydrologic durations. T. 324, 350, 351. The fluctuation management regime provided by the existing conditions alternative partially restores sheetflow from Prairie Creek to the Preserve in sufficient, but fluctuating, water quantities necessary to maintain habitat for fish and wildlife within the eastern lobe. T. 350, 351. It is essential for the protection of the fish and wildlife that utilize and depend upon the Preserve to maintain the flow of Prairie Creek into the Preserve. T. 351, 517. The Preserve needs flow from Prairie Creek in volumes reserved by the proposed rule to protect its fish and wildlife. T. 351. The management levels established by the environmental criteria used for each of the water bodies in the basin will continue to be met in Orange Lake with an average of 45 percent of Prairie Creek flow going to the Preserve and 55 percent going to Orange Lake. T. 432, SJ Ex 1 pp 127, 134, 146. Based upon the substantial and uncontroverted evidence in this case, it is concluded that the water reserved by the Reservation Rule is required for the protection of fish and wildlife of the Preserve.
Findings Of Fact Hammock Dunes is a parcel of land located on the east coast of Florida approximately half way between Daytona Beach and St. Augustine. With the exceptions of a few small parcels separated from the main area, the area in question in this case is that bounded by Malacompra Road to the north, the Atlantic Ocean to the east, and State Road A1A to the south and west. The property is cut at several places from the west boundary, State Road A1A to the east by 16th Road, Jungle Hut Road, and the approach road to the Sheraton Hotel. All of the property at issue in this hearing is owned by either Admiral or its parent company, ITT. The natural terrain is a series of ridges and swales which contain to the west, sea oats, salt palmetto, and coastal scrub in the drier areas. The lower interior ridges contain alternating growth of the above vegetation until one gets to the immediate area of State Road A1A where, because of the fill, oak and other upland vegetation is in evidence. Ditches exist on both sides of each of the cross roads mentioned above. In addition, ditches have been dug in a generally north - south direction following the ridge and swale run of the land and there is also evidence of spoil banks in the southern portion of the property resulting from the dredging of the Florida East Coast Canal. The north/south ditches in question were dug as a part of the mosquito control program carried out over several years starting in 1953 to remove the seasonal breeding ground of salt marsh mosquitoes. In addition to these north/south control ditches, there are other ditches leading away from them which form a part of that system, and there are some permanent waters on the property, primarily at the southern end near the Sheraton Hotel and at the coquina quarry. The dominant vegetation adjacent to the ditches includes a mixture of plants including weeds, disturbance plants, and persistent vegetation. Aerial photographs taken at various times over the period of the last 40 years reflect that the vegetation includes cat tails, bunch grass, wax myrtle, cabbage palms, and salt brush. Many of these ditches are encroached by the growth surrounding them. The existence of cabbage palms serves as a tool to define the swale areas because water conditions are not suitable for these plants in the swales. The swales in question, which basically were the areas in which the drainage ditches were dug, were natural and not man made. According to Dr. Durbin C. Tabb, a consultant in environmental assessment, whose work emphasizes the location, siting, and sensitivity of aquaculture projects, vegetation in areas such as this goes through a progression of species and this progression is used in relic analysis. Dr. Tabb performed a relic analysis on the area in question and based on this, as well as an analysis and examination of extensive aerial photography done of the area, he concluded that prior to the ditching activity, the plant community in the area could be described as a "wet prairie." This is an area of virtual treeless grasses and shrubs growing in an area periodically inundated by water. The zonation of the plants caused by this periodic inundation, as determined by Dr. Tabb, is consistent with wet prairie and that condition, prior to the ditching for mosquito control purposes, was consistent with mosquito breeding. In his analysis, Dr. Tabb found that numerous plants, such as cat tails, maiden cane, pickerel weed, saw grass, spike rush, soft rush, switch grass, button bush, and coastal plain willow, all of which need a moist environment, were extant in the area. Dr. Tabb also concluded that the water in the swales was primarily fresh water. In dry periods, however, in the lower areas, some salt could be sucked up from below ground by capillary action. Another survey of the area was conducted by Jeremy Tyler, the supervisor of the dredge and fill section of the Northeast District of DER, who has performed more than 3,000 jurisdictional determinations over the past 10 years, and who performed the jurisdictional determination for the property in question here. In making his determination, Mr. Tyler looked at various maps, aerial photographs, and information supplied by Admiral Corporation and conducted at least three recent on-sight visits to the property in addition to others conducted in the past. Based on all of this information available to him, Mr. Tyler concluded that certain portions of the Hammock Dunes area were exempt from DER dredge and fill permitting requirements. His conclusions were that the canal running to the intra-coastal waterway and the waterway itself were jurisdictional. Mr. Tyler determined that at least two ditches went through the uplands portion of the area as a part of the mosquito control operation. These ditches were the one at the west side of Malacompra Road which entered into the intra-coastal waterway; another was the westernmost ditch running south into the barge canal at the southeast corner of the property. Both were exempt. The third ditch in the area, that on the most eastern side, was not cut in the mosquito control operation and therefore did not meet the criteria for exemption. On the basis of this, he concluded that DER's jurisdiction extended to the sides of the jurisdictional ditch up about half way northward on the lake in the southeast corner of the property. North of that point, the ditch was cut through a non-jurisdictional uplands area. Mr. Tyler indicated that he would normally follow each ditch up-stream, but, having been made aware of the extent of the mosquito control operation, and the relationship of that operation to the ditches, he concluded that the majority of the ditches in the area were dug during the mosquito control operation and met the criteria for exemption, and, as a result, he did not have to follow them to their source. If he had not been satisfied that the mosquito control district exemption applied, he would have gone up each and every ditch to see where jurisdiction stopped. Prior to publishing an opinion as to jurisdictional limitations, ordinarily the agency will request a legal review of the proposed determination. This was done in the instant case by agency counsel Richard Lee. However, Mr. Tyler made the ultimate determination that the exemption applied in this case. He did not examine the question of whether the ditches constituted a series of lakes connected, so as to support jurisdiction, because since he was satisfied they were dug in mosquito control operations, the exemption applied which obviated any other jurisdictional issue. Robin D. Pyne, a consulting engineer in water resources, has studied the Hammock Dunes property since 1977 when his company was hired to do a water use plan for a neighboring community. Since 1979, he has had substantial opportunity to study the water situation there. Over the years, he has specifically tried to determine if standing water existed between the swales prior to the beginning of the digging of the mosquito control ditches in 1953. In doing his analysis, he relied on historical data, site topography data collections, reports of other agencies, and the work done by other experts. Considering all this, Mr. Pyne found that the soil in the Hammock Dunes area was basically well drained beach sand. Any rainfall on this area would seep in quickly and not run off, as the sand is very porous. During periods of sustained rainfall, the water table rises into the low part of some of the swales. Once the rains stop, however, the water drains off quickly through the ditches, and before they were in place, through the underground drainage which went west to east to the ocean as well as through evaporation. Extrapolation of this theory and its application to known data revealed that prior to the beginning of the mosquito control ditch program in 1953, wet soils were found in the swale bottoms only periodically and the swale bottom water level was determined by the level of the water table in the area. Generally, the swale bottoms would not be wet under average or dry weather prior to the digging of the ditches. The several mathematical calculations made by Mr. Pyne for the period prior to the ditches revealed that generally the average water table was below the bottom of the swale and there is no standing water in the bottom of a majority of the swales. Mr. Pyne concluded that the digging of the ditches may have lowered the water table by approximately one foot overall, but this would not affect his thesis. It is accepted here over that of Mr. Frazee who testified for Petitioner, and whose testimony is discussed in Para 24, infra. Other analysis was conducted by Mr. James H. Humphrey, an aerial cartographer who analyzed photographs of the area in question taken in 1943, 1952 and 1983. The use of a stereo plotter in these analyses delineated swales, ditches, roadways and other features important to the project. Based on the technical tools and procedures available to and used by him in his analysis, Mr. Humphrey is convinced the swales he identified are accurate and using his plotter, the textures of grasses, the tones of grey on the picture, and other like considerations, he was able to determine this outline. Dr. Thomas H. Patton, a geologist with a specialty in geomorphlogy, a study of why land looks as it does, and the relationship of soils to geomorphology, performed studies on the property in question to determine if the swales contained soils indicative of inundated conditions. To determine this, he looked for certain characteristics of the soils in the area to determine if the soils had been inundated for a period of time. In doing so, he first used aerial photographs to get the lay of the land from an overview standpoint defining general trends and the general outline of the land, roads, and other impacts by man. He then took soil samples from the major, the intermediate, and the minor swales and tried to get samples from between the swales to see if there was any interconnection between them. He took samples from soil across the entire width of each swale studied. Soil samples contain and maintain within themselves indications of sustained emergence or saturation. Studying these indicia can show how long the soil was dry (above the water table or below it). If the soils were inundated for a long period, they would show a preservation of a surface decomposed organic layer reflected by a dark grey to black color. This is the primary indication. There are others such as a blue-grey/green coloring of the subsurface and a mottling or sign of reduced condition. This test has been adopted by the Department of Natural Resources and the United States Corps of Engineers. Certain horizons have been defined and identified by letter. These are: O - the top, made up of leaf litter A - the elevated layer - transfer level B - just at or above the water table (normal dark brown color), and BH - the water table level - no clay or organics According to Dr. Patton, it takes a long time for the BH level to accumulate. The process is quicker in a porous soil than a dry soil and the Hammock Dunes area has porous soil. One would not find a BH horizon, however, in a saturated or inundated soil. If the soil is saturated, even a large part of the year, there would be no BH horizon. At the Hammock Dunes site, the emergent soil has a diffused, darker upper surface. Below that comes a much cleaner, greyer sand and beneath that, the zone of accumulation. Dr. Patton's survey revealed to him that soils in the swales were not inundated throughout the year. They were inundated during periods of high rainfall, but because of the porosity of the soil, would drain quickly. On the entire property, he saw only four isolated areas that could be considered wetlands. In the majority of the area, the soils appeared to be emergent soils. Most met the typical horizon picture including a BH zone. Using a specific site as an example, Dr. Patton traced to the BH horizon starting at approximately 42 inches down. The soil started lighter on top and proceeded to get darker as one went down to the zone of accumulation. That indicated that the water table was at or near 42 inches sufficiently during the year to achieve accumulation. Had the water table been nearer the surface more of the year, that would not occur. In Dr. Patton's opinion, this situation, including the water table level, stayed just about at that point all the time for at least a couple of hundred years if not for 1,000 years. This is not to say that the water table will not move during periods of drought and over rain. It will, but those periods are relatively short and the general level of water table where the BH horizon is is just about normally at 42 inches throughout the Hammock Dunes property. In preparing his analysis, Dr. Patton compared the swales work described above with the soils found in what he considered a wetlands area just north of 16th Road to see what a real wetlands soil in this area looked like. He found the latter to be black and mucky and typically wetland. He also took samples from Bonne Terre farms, which is a drained historical wetland. In this wetland, the soil was quite organic at the surface which showed sustained inundation of the surface. He also took samples at a place where Varn Lake comes close to State Road A1A and at that point, it was determined that there had been submergence, saturation, or inundation long enough to constitute a wetlands. The organic material was at a depth which indicated there that originally the area was wetlands but he cannot say when. In general, then, if the interdunal swales had been inundated prior to the dredging operation of the mosquito control ditches, there would have been organic materials still in the bottom of these swales. The time necessary to leach it out would have been several hundred years. Since the BH horizon, with its level of organic material, was located at 42 inches, this indicated that, for the most part, the Hammock Dunes areas with their swales included were not historic wetlands. Dr. Patton agreed with Mr. Pyne that the digging of the mosquito control ditches did not materially lower the water table nor does he believe that except in the worse conditions, in the rainiest of rainy seasons, that the water table in one swale was ever connected to the water table in another. In contrast to the above, Petitioner introduced testimony by various experts and residents which contradicted that referenced above. James M. Frazee, an employee of the St. Johns River Water Management District became familiar with the Hammock Dunes area in connection with a salt water intrusion problem he was working on while employed with the U.S. Geological Survey in 1978 to 1980. During that period, he entered the site at least once a month. Based on his visits at the time, he found the area in question to be a combination of relic dunes with an interdunal lake system which holds water during periods of average to high water levels. His measurements of the water depth between the ridges showed it to be anywhere from 1 1/2 to 2 1/2 feet down. This was during a period when the water table was between 5 1/2 to 6 feet above mean sea level, and was a period of above normal rainfall. During the period 1965 to 1980 there was a period of less than normal rainfall during which the water table fell from the high above to approximately 6 inches above mean sea level. Mr. Frazee contends that the interdunal swales are lakes and ditches dug by the mosquito control district have drained the area. In his opinion, were it not for these ditches, the ground in the swales would be much wetter, but Mr. Frazee cannot indicate by how much. His testimony, contradicted by that of Dr. Patton and Mr. Pyne, is not considered to be consistent with the weight of the evidence. John Labie, an employee of DER specializing in water quality assurance, is familiar with the Hammock Dunes area and examined it as to ditching by a review of numerous aerial photographs and surveys. In his study, he tried to determine what the area looked like originally. In addition to the documentation he reviewed, he also walked a great portion of the area, personally examining the property in question. On the basis of his inquiry, he concluded that the area was previously a wetlands which was dried out by the mosquito control ditches. He admits that his depictions of historical wetlands, on the maps utilized for demonstrative purposes at the hearing, was not based on the same degree of accuracy and sophistication as was the basis for Respondent, Admiral's expert testimony. Another evaluation was conducted by botanist Sydney T. Brinson, an employee of DER, whose job includes the preparation of jurisdictional determinations based on botanical studies. She visited the site herself and determined there are at least three connections to waters of the state and from these connections into the interior of the Hammock Dunes property. She contends then, that if there were not mosquito control exemption, at least some of the ditches would, at least partway up, be jurisdictional. It is her opinion that before the ditches were put in, based on old documentation, the area was a series of coastal dunal lakes and the lakes, as they existed, did not have much plantlife in them. Relying on the U.S. Coastal and Geodetic Survey maps, which refer to much of the areas as "open water," she contends that the area was a system of coastal lakes rather than marshes. Marshes contain vegetation. Lakes generally do not. It is her further opinion that the interdunal waters, as interdunal lakes, total approximately 270 acres. Not all of these are connected at the surface. She feels that all of the individual systems north of the Florida East Coast Canal are more than 10 acres in area and would have to be over 2 inches in depth because of the fact that they are reflected as open water on the USGS maps. Based on her research, she concluded that prior to the digging of the mosquito control ditches, the area was a historic wetland. This opinion is not supported by the weight of the evidence, however. Another expert in soils science, Dar Guam Cheng, visited the site on May 9, 1985, and, in addition, reviewed a 1918 soils map of the area. Back then the area consisted of hydric soils which is a wetlands soils. All types of soils found in the area in 1918 are considered hydric (wetlands) soils. Mr. Cheng, however, took no samples himself on the Hammock Dunes property. His evaluation was based solely on the 1918 map, and is not considered to be of substantial value to the determination of this issue. Burrell Miller, a 76 year old resident of Hammock Dunes since 1979, but who either lived or visited in the area since 1917, indicated that his family homesteaded the area around Malacompra Road in 1920. During the period 1917 through 1943, he recalled, there was always water storage in the Hammock Dunes area. There was, however, not always high water except in the 1926 hurricane. There is, however, fresh water generally there every time it rains and the water generally stays level with the sea level. Mr. Miller recalls that from time to time in years past, boats were needed to cross the savannah to the beach. On other occasions one could wade in water up to one's waist. As he recalls, some of the soil was wet all of the time and never dried out. Mr. Miller's testimony, however, was fragmented and capable of numerous interpretations. It is not given the same weight as the scientific evidence presented by other parties. Nonetheless, another resident, Petitioner, Gerald Schatz, started coming to the area in 1953 and settled there in 1954. Over the years, he has gone into the Hammock Dunes area quite frequently and it is his recollection that along Malacompra Road, there always seemed to be some water, at times, up to the floor board of his pickup truck. He can recall when the mosquito control ditches were started in 1953. Even before he came to the area, Mr. Schatz' father-in- law lived there and always considered it wet. He recalls hearing others also describing the area as being wetlands. During the 1926 hurricane, it was flooded and again in 1957. Before the ditches were installed, there was, to his recollection, substantial standing water. Mr. James J. Miller, state archaeologist for Florida and very familiar with the history of the area, is familiar with the Hammock Dunes area from the work he did on a Development of Regional Impact for the area. Having reviewed records and historical documents relating to this specific area, going back as far as 1605, he concluded that there was no natural waterway extending across the Hammock Dunes area. His study, however, dealt with the issues of navigability of waters not its hydrographics and his study did not deal with the issue of wetlands. Nonetheless, it is clear from the above, that the area was neither open water or a water course at any time in recorded history. The overwhelming weight of the evidence clearly indicated that the Hammock Dunes property was not a historical wetlands within the framework and the intent of the statute or the rule. Admittedly, the area was inundated from time to time, especially after such periods of high rainfall as hurricanes, tropical storms, or above average rainy seasons. During those periods, the standing water which remained for a relatively short period of time was often of such magnitude as to come to the floor board of a pickup truck, or require the use of a skiff or other surface transport over the water to cross it. This clearly accounts for the memory of Mr. Miller as to him using boats to get to the beach and for the recollection of Mr. Schatz who remembered water coming to the floor boards of his truck On the whole, however the scientific evidence presented by Admiral Corporation, including such expert testimony as that of Dr. Patton, Dr. Tabb, Mr. Pyne, and other highly qualified scientists who visited the site and conducted reliable scientific evaluations of the area, all clearly lead to the inescapable conclusion that the area was for the most part and over the long run not a submerged wetland. There can be little question that the majority of the "swales" on Hammock Dunes were either the result of or enhanced by mosquito control ditching operations of the East Flagler Mosquito Control District over the period from 1953 through completion. Though these ditches ultimately connect with the intercoastal waterway or the Florida East Coast Canal, both of which are waters of the state, these connections, with the exception of the ditch west of Varn Lake which is admittedly not exempt, are obviously due to mosquito control activities of EFMCD. According to the best evidence available, the land in question was not a surface water body nor was it connected to a water of the state prior to the construction of the mosquito control ditch system. For the most part, the interdunal swales, which constantly hold water, are less than 10 acres in size and have an average depth of less than 2 feet of water in them throughout the year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that DER take final agency action adopting the preliminary determinations made by its Northeastern District of DER's permitting jurisdiction for the discharge of dredge and fill materials on Hammock Dunes as outlined in the DER Northeast District letter of August 9, 1984 to Admiral Corporation. RECOMMENDED in Tallahassee, Florida this 23rd day of December, 1985. ARNOLD H. POLLOCK 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 23rd day of December, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3604 In the preparation of this Recommended order, the proposed Findings of Fact submitted by Petitioner and Respondent were thoroughly considered and evaluated. As listed below, the individual proposed findings were accepted or rejected by the undersigned as indicated: For the Petitioner: 1) accepted and incorporated in para 30 (a)-(e) accepted but not dispositive of any issue - 6) accepted except for the last sentence of para 6 which is argument rejected as contra the weight of the evidence accepted accepted but immaterial 10 - 12) accepted but not dispositive irrelevant irrelevant irrelevant accepted rejected as irrelevant (a) - (d) accepted - 23) accepted but not controlling 24 - 25) rejected as argument, finding of fact 26 (a) (1) - (4) accepted but not conclusive or definitive 26 (5) rejected as a summary of documentation and not a mapped Findings of Fact 26 (b) - (d) rejected as a summary of testimony and not a finding of fact rejected as a summary of testimony and not a finding of fact rejected 29 (a) - (d) rejected as argument summarization of testimony rather than Findings of Fact rejected as a summary of testimony rather than Finding of Fact accepted 32 - 36) accepted rejected as contra to the weight of the evidence rejected as summary of testimony and not Finding of Fact rejected as contra to the weight of the evidence and argument rather than Finding of Fact rejected as summary of testimony and not Finding of Fact 1st and 2nd paras accepted, but 3rd paragraph rejected as not the better evidence rejected as argument and not Finding of Fact 43 - 44) accepted accepted rejected as contra to the weight of the evidence accepted as to the severance of Varn Lake from the major canal but rejected as to contra to the weight of the evidence as to the historical connection rejected as contra to the weight of the evidence accepted accepted that Mr. Labie made such a "finding" but the finding is rejected as contra to the weight of the evidence 51 - 52) rejected as recitations of testimony and not Findings of Fact 53) rejected as far as categorization of the periodic wet areas as "lake systems" 54) accepted as a statement of Mr. Schatz's recollection accepted as a statement of the contents of a writing not dispositive of the issue 57 - 59) accepted 60) rejected as contra to the weight of the evidence For the Respondent: accepted accepted accepted except for the term "swales" which is used merely descriptively and not binding as to definition accepted accepted 5 (a) - (c) rejected as recitations of testimony rather than Findings of Fact 5 (d) - (8) accepted rejected as contra to the weight of the evidence. Petitioner's witnesses' testimony was, in general, in disagreement with that of Respondent's witnesses. However, as stated in the Recommended Order, the weight and quality of Respondent's evidence prevailed. (o) - (q) accepted not as fact but as a recitation of the evidence presented by each witness (a) - (c) accepted - 11) accepted 12) accepted COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Deborah Getzoff, Esquire Ross Burnaman, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Randall E. Denker, Esquire Lehrman & Denker Law Offices 103 North Gadsden Street Post Office Box 1736 Tallahassee, Florida 32302 Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Carlos Alvarez, Esquire Carolyn S. Raepple, Esquire Hopping Boyd Green & Sams 420 First Florida Bank Bldg. Post Office Box 6526 Tallahassee, Florida 32314 =================================================================
Findings Of Fact On November 13, 1990, the St. Johns River Water Management District (SJRWMD) Governing Board voted to issue to the University of North Florida (UNF), a Management and Storage of Surface Waters (MSSW) permit #4-031-0359GM for the construction and operation of a surface water management system associated with road and parking lot construction on the UNF campus in Jacksonville. On the same day, the board also voted to issue water resource management permit #12-031-0007G authorizing dredging and filling in waters of the state related to said road and parking lot construction. Petitioners timely petitioned for hearing, challenging the SJRWMD decision to award the permits. Neither the standing of the Petitioners nor the Intervenor is at issue in this proceeding. The UNF campus contains approximately 1000 acres in Duval County, Florida, and lies completely within the jurisdiction of the SJRWMD. The UNF is an agency of the State of Florida, and has the apparent authority to make application for the referenced permits. The UNF campus is designated as a wildlife sanctuary. Of the 1,000 acres, wetlands constitute approximately 450 acres. Prior to development of the UNF campus, the property was utilized for silviculture, with pine trees farmed and harvested on the land. The property was and continues to be crossed by numerous logging roads and trails. During the 1970's extensive alterations occurred in the property related to local development activity. Swamps and stream flows were disrupted. Wetlands headwaters were altered by the construction of lakes. Adjacent highways and office developments were constructed, borrow pits were utilized, and wetlands were filled. There is some planted pine forest, generally no more than 40 years old, remaining on the UNF campus. Much of the UNF property remains undeveloped and consists of a variety of common habitat, including pine flatwoods, oak hammocks, and various wetlands. The existing UNF campus is crossed by a series of wetlands located generally north to south through the property. The wetlands include Sawmill Slough, Buckhead Branch, Boggy Branch, and Ryals Swamp. The water in the area flows to the southeast. Previous construction of UNF Drive required the crossing of Buckhead Branch and the filling of portions of Boggy Branch. The UNF now proposes to construct approximately .66 miles of three lane roadway across the southern portion of the campus to connect the existing UNF access drive into a loop (the "loop" road), approximately .34 miles of two lane roadway from a point on the loop into an upland area in the southeastern part of the campus (the "eastern connector"), pave an existing parking lot near UNF nature trails, and construct related surface and stormwater management facilities. The purpose of the loop road project is to enhance access around the UNF campus. The eastern connector will provide access to an undeveloped upland area of the campus. The expansion is related to and required by the anticipated continued growth of the University. The on-campus silviculture logging roads and trails, which remain from the pre-development period, have long been utilized by the UNF community as nature trails. The trails bisect a substantial part of the remaining undeveloped campus. In 1978, approximately 12 miles of trails were listed by the UNF with the United States Department of the Interior as National Recreational Trails, a national collected listing of recreational trails. These named trails, (the "maintained trails" as identified below, and the White Violet, Switchcane, and Turkey Trace trails) were marked by means of paint blazing and signs. In some locations, such markings, and at least one sign remain visible, even though the paint markings have not been repainted since the original blazing occurred. The UNF is fiscally unable to maintain all twelve miles of trail for general public use. The UNF concentrates maintenance and education efforts on three of the trails, the Blueberry, the Red Maple and the Goldenrod (hereinafter referred to as the "maintained trails"). The maintained trails, approximately 6 miles in total length, are signed and marked to provide clear and safe direction through the area. For public use, the UNF provides educational materials related to the maintained trails. Approximately 17,000 persons use the maintained trails annually. Two rangers are employed to supervise the maintained trails. In the most recent two year fiscal period, about $21,000 has been spent rebuilding and upgrading parts of the maintained trails. The UNF provides no security for the logging trails (hereinafter the "unmaintained trails") which are not part of the maintained trail system, and does not encourage the use of the old logging roads as trails. The proposed road construction project will adversely affect the use of the unmaintained trails because the road projects will intersect and overlap several of the trails. The evidence fails to establish that the UNF is without authority to amend, alter, relocate or abandon trails listed with the United States Department of the Interior as National Recreational Trails, or that notice need be provided to the Department prior to such action. There are additional recreational facilities available on the UNF campus, including two jogging trails, as well as a multi-sport facility in the north part of the campus. Approximately 10 total miles of trails exist (including the maintained trails and excluding the unmaintained logging trails). Persons who travel to the maintained trails by automobile currently park in an unpaved lot. The proposed roadway construction for which permits are being sought includes expansion and paving of the nature trail parking lot. This improvement will provide for better access to, and increased utilization of, the maintained trails and eliminate maintenance problems experienced in relation to the unpaved parking area. Notwithstanding the adverse impact on current use of the unmaintained logging trails, the project will enhance recreational development. Operation of the stormwater system, which will result in improved water quality discharged into the receiving waters, will not adversely affect recreational development. Although the recreational values of the impacted unmaintained trails will be adversely affected, on balance the additional access to the maintained trails and the recreational opportunities presented elsewhere on the UNF campus negate the impact on the unmaintained trails. Construction of the roadway will adversely impact portions of the Boggy and Buckhead Branches, which contains wetlands (as defined by, and under the jurisdiction of, the SJRWMD) and waters of the State of Florida (as defined by, and under the jurisdiction of, the Florida Department of Environmental Regulation, which has authorized the SJRWMD to review projects on the DER's behalf). The extent of the wetland impact was determined by the UNF and corroborated by the SJRWMD in an reliable manner. The wetlands impact areas are identified as follows: Area 1, at the upper margin of Boggy Branch, includes slash pine canopy and mixed bay trees; Area 2 is primarily second growth loblolly bay canopy, dense undergrowth, swamp. The loblolly is approximately 20 years old; Area 3 is a west flowing connection between Boggy and Buckhead Branches; Area 4, (the Buckhead Branch crossing), is bay canopy and bottomland hardwood. Areas 1, 2 and 4 will require filling for the construction of the loop road. Area 3 requires filling for the construction of the eastern connector. A total of approximately 2.3 total acres of forested wetlands are included within the impacted area. Of the 2.3 acres identified as wetlands for MSSW permitting purposes, 1.5 acres are classed as waters of the state for purposes of dredge and fill permitting. The wetlands are generally classified as fair to poor quality, although there is a limited wetland area classified as fair to good quality. The wetlands impact of the project on wetland dependent and off-site aquatic species would, without mitigation, be unpermittable. The loop road project includes three drainage areas. Accordingly to plans, drainage area #1 is served by curbs and gutters into storm sewers and discharging into wet detention pond E, drainage area #2 is served by curbs and gutters into storm sewers and discharging into wet detention pond F, and drainage area #3 is served by curbs and gutters discharging into a dry retention swale located adjacent to the road. Stormwater management and treatment for the eastern connector will be provided by a swale system located adjacent to the eastern connector. The western portion of the loop road and the newly paved nature trail parking lot will be separately served by a dry swale system and two retention ponds at the newly paved nature trail parking lot. Wet detention ponds retain the "first flush" stormwater runoff and discharge the water at a reduced rate through a "bleed down" structure. Pollutant removal occurs when first flush runoff is retained and mixed with additional water. Pond and soil organisms and littoral plants provide additional treatment. Such ponds are effective and require minimal maintenance, generally involving removal of nuisance species and cleaning of the "bleed down" structure. Oil skimmers will prevent the discharge of oils and greases from the site. The wet detention ponds have side slopes no steeper than a 4 to 1 horizontal to vertical angle and will be mulched or vegetated to prevent erosion. Dry retention facilities retain the "first flush" runoff and attenuate peak stormwater discharge. The water within the dry swale is filtered as it percolates down through the soil. Maintenance of dry swale systems requires mowing and removal of silt buildup. The design of the system provides that the post development peak rate of discharge will not exceed the pre-development peak rate of discharge for a 24 hour duration storm with a 25 year return frequency. The project will not cause a reduction in the flood conveyance capabilities provided by a floodway. The project will not result in flows and levels of adjacent streams, impoundments or other water courses being decreased so as to cause adverse impacts. The projects detention basins will provide the capacity for the specified treatment volume of stormwater within 72 hours following a storm event. The project is not located in and does not discharge directly to Class I or Class II waters, to Class III waters approved for shellfish harvesting, or to Outstanding Florida Waters. The receiving waters for the system are Boggy and Buckhead Branches, both Class III surface waters. Operation of the system will not cause or result in violation of state water quality standards for the receiving waters. The discharge from the system will meet Class III water standards. There is no evidence that operation of the system will induce pollution intrusion. The design and sequence of construction includes appropriate Best Management Practice provisions for erosion and sediment control, including silt barriers and hay bales. Such provisions are required by the SJRWMD permit conditions. Silt barriers will completely enclose the dredging locations. The bottoms of silt curtains will be buried and will extend 3.5 to 4 feet above the land surface. Slopes will be stabilized by sodding or seeding. The locations of the wet ponds and dry swales, nearby the roadways, will facilitate maintenance activities. Maintenance requirements are included within the SJRWMD permit conditions and are sufficient to ensure the proper operation of the facilities. Although the Petitioners asserted that prior violations of SJRWMD rules related to water quality discharge by the UNF indicate that the UNF is not capable of effectively and adequately operating and maintaining the system, the evidence establishes that the permit conditions are sufficient to provide for such operation and maintenance. The project also includes replacement of an existing culvert at a connection between Boggy and Buckhead Branches. The existing culvert is impounding water during the wet season. The replacement culvert will be installed at the connection floor elevation and will serve to restore the natural hydrology. The new culvert will also be substantially larger than the existing pipe, and can allow fish and wildlife passage under the road. In order to mitigate the impact of the project on wetland dependent and off-site aquatic species, the UNF has proposed to create a 6.3 acre freshwater forested wetland at a site contiguous to Buckhead Branch. The wetlands creation project includes 2.9 acres of submerged wetlands and 3.4 acres of transitional wetlands. Of the 6.3 acres, 4.1 acres of the created wetlands are designated to mitigate the adverse impacts related to the dredge and fill activities. The mitigation proposal constitutes a ratio of 2.7 acres of wetlands creation for every acre of wetland impact. The mitigation site is a low upland pine flatwood and mesic flatwood area surrounded on three sides by wetlands related to Buckhead Branch. The mitigation area will be scraped down to a suitable level and over-excavated by six inches. The elevation of the proposed wetland creation area is based upon water table data and surveying of the Buckhead Branch, located adjacent to the proposed mitigation area, which serves as the wetlands reference area. The UNF monitors surface and ground water elevation in the proposed mitigation area and in Buckhead Branch, and records rainfall amounts. The hydrology of the proposed wetland creation area is based upon the connections of the created wetlands with Buckhead Branch and is sufficient to assure an appropriate hydroperiod. The six inch over-excavation will receive muck soils removed from the impacted wetland areas. The subsurface soils in the wetland creation area are, because of the existing water table level, compatible with the wetland creation. The muck soil will naturally contain seeds and tubers of appropriate vegetation. Additionally, wetland trees, based upon trees in adjacent wetland areas, will be planted in the wetland creation. Prior to planting, the UNF will be required to submit an as-built survey demonstrating that the hydrology and elevation newly- created wetland is proper. The UNF proposal to monitor and maintain the created wetland includes physical and aerial examination of the site, which will be protected by a deeded conservation easement. The monitoring and maintenance plan will continue for three years. The mitigation effort must achieve a ground cover of not less than 80% to be considered successful. Nuisance species will comprise less than 10% of the site's vegetation, and excessive nuisance species will be removed. The UNF is required to periodically report the status of the site to the SJRWMD. The mitigation proposal is adequately detailed and sufficient to offset adverse impacts to wetlands resulting from construction and operation of the system and the dredge and fill project. The wetland creation permit conditions indicate that the wetlands will function as designed and approved by the SJRWMD. The wetland creation is greater in size than the impacted wetlands, will replace the habitat and function of the impacted wetlands and will offset the adverse impacts of the loss of existing wetlands. There will be no impact on any threatened or endangered animal species. The evidence that such species utilize impacted sites is limited. Existing utilization of the impacted site will be accommodated by the remaining wetlands and the created wetland mitigation area. There is no evidence that fish will be adversely affected by the project. Construction and operation of the system will not cause adverse changes in the habitat, abundance, diversity or food sources of threatened and endangered species or off-site aquatic and wetland dependent species. More than five years ago, a bald eagle, listed as endangered by the State of Florida, was observed perched on an upland tree in an area where a retention pond will be constructed. The eagle was not nesting or feeding at the time of observation. The closest known eagle's nest is more than four miles away from the site. None of the impacted area provides appropriate feeding ground for a bald eagle. Colonies of red-cockaded woodpeckers exist between one and one half to ten miles away from the UNF campus. Red- cockaded woodpeckers have been observed on the UNF campus but not in the vicinity of the areas to be impacted by the project. Red- cockaded woodpeckers habitat pine trees at least 50 years old. While the existing pine may provide red-cockaded woodpecker habitat in the future, the pine trees to be impacted by this project are not suitable habitat for red-cockaded woodpeckers at this time. There are no pines on the UNF campus which would currently provide suitable red-cockaded woodpecker habitat. Woodstorks have been sighted on the UNF campus, but not in the impacted area or the mitigation area. Woodstorks feed in areas dissimilar to the impacted areas, therefore there should be no impact on the species. Gopher tortoises have been observed on the UNF campus, but not in the impacted wetland areas or in the mitigation areas. There is no evidence that gopher tortoises would be impacted by this project. A number of animal species identified as wetland dependent have been observed on the campus. However, the evidence of actual utilization of impacted areas by such species is unclear as to frequency and manner of utilization. Such wetland-dependent species are capable of utilizing proximal habitat and will be absorbed by the unimpacted wetland acreage on the UNF campus. Further, the impact on potential habitat caused by the project will be effectively mitigated through the created wetland area. Five hooded pitcher plants are located within the wetland impact area and will be destroyed by construction activities. The hooded pitcher plant is listed by the State of Florida as a threatened species, however, the plant is common in wet areas throughout Duval, Clay, St. Johns and Nassau Counties. Because the muck soils removed from the area will contain seeds, roots and rhizomes from existing vegetation, the plants will likely reproduce in the created wetland area which will contain the muck soil removed during the permitted construction activity. There is no evidence that the dredge and fill project will adversely affect public health, safety and welfare. There are no significant secondary impacts resulting from the proposed project. The SJRWMD considered the environmental impacts expected to occur related to the construction of the roadways for which the permits are sought. In this case, the anticipated secondary impact of the project relates to the effect of automobiles on existing wildlife. The evidence does not establish that there will be such an impact. The road poses no obstacle to wildlife migration. The replacement of the existing culvert with a new culvert at the proper ground elevation may provide enhanced access for some wildlife. The cumulative impacts of the project include the potential expansion of the eastern connector which would require the crossing of Boggy Branch, and future building construction in the southeast portion of the UNF campus. There is no evidence that such impacts, which would require additional permitting, could not be offset with additional mitigation at such time as the permitting is sought.
Recommendation Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on June 11-12, 1991, in Jacksonville, Florida.
Findings Of Fact Collier Development Corporation, Naples, Florida, owns a triangular tract of land consisting of approximately 16 acres in Naples, Florida. In 1958, the Trustees of the Internal Improvement Fund conveyed by quitclaim deed to Collier Development Corporation all its interests in the property. A 1958 affidavit of Collier's surveyor who prepared the legal description of the land was filed in the Collier County public records and states that the land conveyed by the quitclaim deed was "high land" erroneously shown as bay bottom land according to the original government survey, and that the deed was executed in exchange for the conveyance of certain parcels of bay bottom land in Naples Bay to the Trustees. (Exhibits 1-2) In 1976, Petitioner executed an option agreement with Collier Development Corporation to purchase the land in question, contingent upon certain conditions including a requirement to obtain any required fill permits. On December 27, 1976, Petitioner assigned the option agreement to Michael S. Spiegel and himself as joint tenants. On March 14, 1977, a "short form" application was filed by Petitioner, as authorized by Collier Development Corporation, with Respondent to fill the land above the mean high water line to building grade for future residential, multi-family, or commercial uses. The application reflected that 400 cubic yards of rock riprap would be placed at least five feet upland of the designated mean high water line along the boundary of the property that faced the Gordon River and Rock Creek. The riprap revetment is designed to provide a method of containing upland fill material. The application contemplates that a fabric-like material "Mirafi" will be placed on the ground and wrapped over the riprap barrier. The application further provides that approximately 90,000 pounds of fill material will be trucked into the site and placed behind the riprap material to fill the land to a minimum elevation of four feet. It is also proposed to slope the fill material behind the riprap and plant grass seed thereon. In October, 1977, Petitioner filed a "long form" application which merely amplified the original application. The mean high water line was established by a survey performed under standard procedures and which utilized the existing bulkhead line as a point of reference. The survey was conducted in 1977 and 1978, and the procedures used were approved by and the survey filed in the Department of Natural Resources on June 26, 1978. (Testimony of Park, Lawson, Exhibits 4, 6, 8, 11) By letter dated January 26, 1978, Respondent provided notice of its intent to deny the permit application pursuant to Chapters 253 and 403, Florida Statutes, and Public Law 92-500. The reasons stated for the proposed denial generally were that filling the land would destroy mangrove vegetation which provides a major input of organic material to estuarine tropic webs, and filters and assimilates pollutants from upland runoff. It was stated that the proposed project would eliminate approximately 15 acres of submerged lands and transition zones, as defined in Chapter 17-4, Florida Administrative Code, which would reduce the quality and quantity of the state's marine resources adjacent to Class II waters and "tend to cause degradation of water quality conditions." Thereafter, on January 25, 1978, Petitioner submitted a petition for hearing wherein the jurisdiction of the Respondent in the matter and its grounds for the proposed denial were challenged. (Exhibit 5) The land in question is located south and adjacent to the confluence of the Gordon River and Rock Creek along the north side of U.S. Highway 41. The Gordon River and Rock Creek are tributaries of Naples Bay and all are Class II waters. The area is vegetated by red mangroves with a lesser number of white and black mangroves. A pond of about one-half acre surrounded by red mangroves is located in the southern section of the tract which occasionally overflows into a ditch running parallel to U.S. 41 located within the highway right-of- way. There is a berm alongside the ditch designed to prevent highway runoff from flowing onto Petitioner's land. During high tides, most of the land is inundated to varied depths ranging from two to eight inches. Certain marine vegetational species are present on portions of the land, such as sea grape, sea purslane, sea daisy, and button wood. Certain marine animal life is present in the mangrove area, including coffee bean snails, ribbed mussels, marsh clams, mangrove crabs, fiddler crabs, and mosquito fish. Other marine species, such as common oysters, scorched mussels, and barnacles inhabit the Rock Creek shore line. There is sparse bird population on Petitioner's land that may in part be due to the proximity of Naples Airport. (Testimony of Lawson, Park, Carroll, Fields, M. Spiegel, Exhibits 3, 7, 10) The quality of water in the Gordon River and Rock Creek is adversely effected to some degree by receipt of sewage plant effluent, discharge from nearby canals and runoff from residential and commercial areas. As a result of high bacterial count in these waters, shell fishing and swimming is not permitted. The mangrove forest on Petitioner's property is in a stressed condition as evidenced by the thinness of the canopy. It is probable that this condition was caused primarily by the introduction of fresh water from canals into the surrounding waters. (Testimony of Carroll, Fields, Erwin, Yokel) Mangrove wetlands are an important component of the estuarine ecosystem which provide nutrient stabilization and transformation in the supply of an organic base to the estuarine food chain, filtration of upland runoff, and storage of storm waters. They are a nursery for fish and invertebrate species, and a fish and wildlife habitat. The mangrove system on Petitioner's property is productive and contributing to the needs of marine life in the Naples Bay area. In this respect, most of the detritus produced by the mangrove system occurs below the mean high water line. However, the tidal flow during storm conditions at certain times of the year can release accumulated organic matter from the higher areas. This generally occurs in late summer and early fall when feeding demands of organisms are high. (Testimony of Erwin, Yokel) Although no system for containing surface water runoff was set forth in Petitioner's permit application, it is planned that such runoff will be retained on the site by a site drainage plan that would be accomplished by grading and the use of the existing pond or other means of retention, in addition to the natural percolation into the sandy fill material. (Testimony of Park) The application did not specify the precise distance from the mean high water line at which fill would be placed, but Petitioner clarified this point at the hearing. Fill material will not be placed closer than 100 feet upland of the mean high water line. The mangrove area left intact below that point will enable the ecological system to survive. However, due to the fact that the Naples Bay area does not produce sufficient organic matter to fully support animal life in the area, the loss of a substantial portion of mangroves will impact on the detrital food chain to some extent. (Testimony of Carroll, Yokel)
Recommendation That Respondent issue the requested permit to Petitioner, subject to the modification thereto made at the hearing with regard to the 100' setback as set forth in paragraph 8 of the foregoing Findings of Fact. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1979. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1979. COPIES FURNISHED: H. Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Howard Horowitz, Esquire 3550 Biscayne Boulevard Suite 402 Miami, Florida 33137 William Blackwell, Esquire 3003 North Miami Trail Naples, Florida
The Issue Whether or not Applicant Homecomers, Inc. should be issued a dredge and fill permit upon reasonable assurances that the proposed project meets the requirements of Chapter 403 F.S. and Chapter 17-3 F.A.C.
Findings Of Fact The following Petitioners were represented at formal hearing by J. Stephen Alexander, Esquire: Bill and Penny Halsell Barbara Wayne D. Judy D. Borst Edwin K. Martin J. Stephen Alexander and Torim V. Alexander M. Jerry Prater and James L. Prater Jackie A. Kelly Carol Schaefer Frank A. Schaefer David B. Hoar Lawrence S. Hoar The following Petitioners did not appear for, and were not otherwise represented at, either the formal prehearing conference or the final formal evidentiary hearing: C. Robert Bechin Ben Anderson Resident (signature unintelligible) [possibly also known as Charlie Blitch] Robert Nasife Marie D. Nasife and Robert G. Nasife Kathleen R. Pile and Kevin D. Pile Beverly S. Smith and Greg Smith N. James Hoffner and Bonnie Hoffner 0. Marie D. Nasife Betty Wiant Helen Morgan U. Laura Hoar Y. Rita M. Hoar Neither did any of the foregoing Petitioners listed in this paragraph comply with the terms of either the Order to Show Cause or the Order of Prehearing Instructions entered herein on January 12, 1990. Accordingly, Petitions C, E, F, G, H, K, L, N, O, Q, R, U, and Y should be dismissed. The parties stipulated that the waters of the state which give DER jurisdiction over this project are Class II waters, as defined in Rule 17-3.111 F.A.C. The parties stipulated that the proposed project will not adversely affect the public health, safety or welfare. The parties stipulated that the proposed project will not adversely affect the property of Petitioners. The parties stipulated that the proposed project will not adversely affect navigation in the vicinity of the project. The parties stipulated that the proposed project will not adversely affect recreational values in the vicinity of the project. The parties stipulated that the proposed project will not adversely affect significant historical or archeological resources under the provisions of Section 276.061 F.S. The parties stipulated that the proposed project will not result in adverse cumulative impacts. Applicant Homecomers, Inc. owns a rectangular- shaped piece of property approximately 6.8 acres in size which lies immediately to the south of Palmetto Road in St. Augustine, Florida. It is approximately one-half mile from the Matanzas River. A perimeter ditch runs parallel to three sides of Applicant's property. Water in the perimeter ditch rises and falls with the tides. The eastern boundary of Homecomers' property abuts the westernmost lots in Hawaiian Isles subdivision, except where an elongated pond separates the subdivision lots from Homecomers' property line. Another elongated but smaller pond is more central to the Homecomers parcel. The northeast corner of the property contains another small T-shaped pond. At high tide, the ditch may overflow to one or more of these ponds, further increasing the flow considerably. Neighbors who have had the opportunity to observe the property at high and "`noon" tides describe the property as completely or nearly completely under water at normal high tide. Best estimates appear to show that two-thirds of the 6.8 acres is underwater three or four days in a row, six or seven times per year. No one who testified on behalf of the Applicant had visited the property at high tide. For all practical purposes, Homecomers' entire piece of property is completely within the landward extent of the Matanzas River, a Class II water of the state. The property is connected to the Matanzas River by a 48-inch- diameter culvert. Vegetation on the piece of property includes submerged species, which form a marsh over most of the property, and transitional species, which form a "high marsh." The high marsh area is elevated above the rest of the marsh because of spoil having been placed there in the past. There is also a small area where the spoil is high enough to support upland vegetation. This upland area is next to the location where construction is planned. Homecomers proposes to construct a permanent 40 foot by 40 foot pile- supported house approximately 150 feet south of the center line of Palmetto Road and approximately 90 feet west of the eastern property boundary. The project proposal/permit application calls for the house to be 15 feet above grade. The house and an associated parking area will be connected to Palmetto Road by a 10- foot wide driveway. However, no one who testified on behalf of the Applicant was able to provide any topographical surveys or other plans with researched elevations. The plans provided had been prepared by an engineer only "roughly to scale." Some concerns over precisely how the Applicant could make adequate provisions for utility and sewage connections were raised by Mr. Nock, a local St. Johns County contractor, but these problems were not insurmountable, even by Mr. Nock's estimation. The driveway and parking area will replace an existing jeep trail which, after leveling, will be covered with six inches of coquina. DER's Intent to Grant specifies that all fill be stabilized. The ditch which the driveway crosses has been viewed to regularly contain twelve to fourteen inches of standing water. The evidence of Mr. Tyler is to the effect that a driveway on pilings would be preferable to, but more expensive than, a coquina-based driveway, but the coquina driveway as proposed meets DER's assessment that there will be no significant negative environmental impact from the driveway. The vegetation on the existing jeep trail is of the high marsh variety and is sparse. The driveway and parking area will not be surfaced with asphalt or any other impervious material. An 18-inch diameter culvert, 18 feet long, will be placed beneath the driveway at the point at which it crosses over the perimeter ditch. Existing culverts in the vicinity are 16 inches in diameter. The Applicant's proposal is comparable or slightly preferable to these existing culverts which are functioning satisfactorily without adding to road or property flooding. After some temporary construction damage to the ground vegetation, which may reasonably be expected to "grow back" or otherwise correct itself in time, construction of the proposed driveway and parking area will permanently eliminate only approximately 1900 square feet of high marsh wetlands, and construction of the house will shade, to varying degrees, 1600 square feet of high marsh wetlands. The permanent shade under the completed house may be expected to permanently destroy certain ground vegetation directly under the house, but equally acceptable ground vegetation may be reasonably expected to take its place as the ecosystem naturally adjusts to the man-made intrusion. Because of the natural passage of the sun from east to west, the shade around the house caused by the house will also move in a shifting east-to-west pattern each day, and this type of shade is not considered significantly damaging to vegetation. At present, the daily tidal water flow moves over the existing jeep trail between the perimeter ditch and "T" pond. The 18-inch culvert will not obstruct this flow. Rather, it should allow a more direct connection. During "moon tides," approximately six or seven times a year, the high marsh and upland areas of Homecomers' property are covered with water. At these times, water will flow directly from the "T" pond to the large, elongated, narrow pond and then to the perimeter ditch which lies to the south of Homecomers' property. The proposed project will not impede that flow since it is not to be constructed in the usual flow-way. The proposed project will not cause harmful erosion or shoaling. Erosion and shoaling result from the rapid flow of water which lifts material from one point (erosion) and deposits it at a different point (shoaling). Since the flow of water around Homecomers' property is tidal, it moves very slowly, and no erosion or shoaling, much less harmful erosion or shoaling, is expected. Although some disruption is inevitable, no wildlife will be destroyed by construction of the proposed project. Many types of birds feed in the ponds and perimeter ditches, but the proximity of these areas to Palmetto Road and to existing houses does not affect such feeding at the present time, and the evidence presented was insufficient to show that the addition of the proposed house and driveway will have an ecologically significant impact on the feeding habits of the birds actually observed, and it is unclear if any of the birds observed are officially classified as either "endangered" or "threatened." Thus, the proposed project will have no discernible effect upon wildlife or its habitat. Disruption to the fish in the area is probable but unquantified. It is the "low marsh," not the "high marsh," which is considered to constitute a fish "nursery" in the ecosystem, but when high or "moon" tides cover the high marsh to a depth in which fish can swim, the high marsh can be considered to serve as fish habitat. However, since such flooding is infrequent, and since the vegetation to be destroyed by the driveway is sparse, the impact upon fish habitat will be minimal. The effect of the proposed project on marine productivity is unquantified and predicted to be minimal. A project can negatively impact marine productivity by either damaging water quality or by eliminating wetland areas which, as plants disintegrate, provide marine life with tiny organic food particles. Since the area to be covered with coquina is sparsely vegetated and infrequently flooded, its contribution to the food chain is not significant. Although Dr. Tropino-Rosenthaul testified as an expert marine biologist that larval forms are susceptible to petroleum products, the degree of impact of oil and grease that might be discharged from motor vehicles using the driveway and parking area would be small, and their impact is subject to a lot of variables, including but not limited to dilution, runoff quantity and velocity, and whether or not the surface is pervious or impervious. Petitioners concede that high tides increase the flow in the ditch, and it must be inferred that such greater velocity and dilution with such increased flow would continue. To date, there is no data to quantify what amount or concentration of oil and grease would harm the larvae present in this location, but in order to minimize impacts from any oil and grease leaks on the property, the driveway and parking area are to be constructed of coquina (pervious or porous material), rather than asphalt (impervious material), so that any drips will proceed downward into the soil rather than laterally into surface waters. Oil and grease which does not adhere to the coquina or ground beneath it would be washed into the surface water only on those occasions when the driveway and parking area are flooded. During such flood tides, the greater volume of water will help dilute any oil or grease which is washed into the water. Dr. Tropino-Rosenthaul candidly described most of the damage to be feared as already having occurred when impervious public roadways were cut through the area. In comparison, this project's potential damage is extremely small. For the foregoing reasons, the project will have a slight, but unmeasurable negative impact on water quality and an unquantified effect on marine production. For the foregoing reasons, this is a "borderline case" in the opinion of DER's Mr. Tyler, who felt that the Applicant's willingness to give DER a conservation easement in mitigation of the sporadic and unquantified potential harm this project might cause made granting of this permit in the State's best interest. The proposed conservation easement agreement is made pursuant to Section 704.06, F.S. and is a condition of the Intent to Grant. It is intended to offset any adverse impacts resulting from the proposed project. The easement will ensure that 280,640 square feet of the parcel's 283,400 square feet (1 acre 43,560 square feet) will remain unaltered and continue to function as a productive wetland.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order: (l) Dismissing Petitions C, E, F, G, H, K, L, N, O, Q, R, U, and Y; Denying the relief sought in Petitions A, B, D, L, J, M, P, S, T, V, W, and X; and Approving the Homecomers Application by issuance of a dredge and fill permit as conditioned by the Intent to Grant. DONE and ENTERED this 9th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-5270 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): PFOF of Petitioners A, B, D, I, J, J, S, T, V, X, and W: 1 The stipulation as orally modified at formal hearing is accepted and incorporated in the Recommended Order (RO) as appropriate. 2-3 Rejected as COL, not FOF, as cumulative, and because there was no proof that the species proved to be present were listed as "endangered" or "threatened" by any recognized authority. 4 Rejected as not supported by the record as a whole. 5,8 Rejected as COL, not FOF, as cumulative, and because not supported by the record as a whole. 6-7 Accepted that water quality standards would be minimally adversely affected as set forth in the RO but these are COL, not FOF as stated. Also, Dr. Rosenthal testified that he was unfamiliar with the standards to be applied in this type of proceeding. 9-11 Rejected as COL, not FOF, and as not supported by the record as a whole. Respondent' s PFOF: 1-6 Accepted as modified to better reflect the credible, competent, substantial evidence as a whole. 7-16 Accepted as modified to exclude COL and to better reflect the credible, competent, substantial evidence as a whole. No other proposals have been received to date. COPIES FURNISHED: Rita M. Hoar 15 Hawaiian Boulevard St. Augustine, Florida 32084 F. Resident (possibly also known as Charlie Blitch] 330 Palmetto Road St. Augustine, Florida 32084 K. Kathleen R. Pile Kevin D. Pile 32 Hawaiian Boulevard St. Augustine, Florida 32084 G. Robert M. Nasife 5494 Fourth Street St. Augustine, Florida 32084 B. Kuehn 72 Aloha Circle St. Augustine, Florida 32084 Betty Wiant 64 Kon Tiki Circle St. Augustine, Florida 32084 H. Marie D. Nasife Robert G. Nasife 270 Palmetto Road St. Augustine, Florida 32084 E. Ben Anderson 5443 Fourth Street St. Augustine, Florida 32084 C. Robert H. Bechin 101 Hawaiian Boulevard St. Augustine, Florida 32084 U. Laura Hoar 7 Hawaiian Boulevard St. Augustine, Florida 32084 O. Marie D. Nasife 5489 Third Street St. Augustine, Florida 32084 P. R. M. Kuehn 5494 Atlantic View St. Augustine, Florida 32084 R. Helen Morgan 20 Hawaiian Boulevard St. Augustine, Florida 32084 L. Beverly S. Smith Greg Smith 5495 Fourth Street St. Augustine, Florida 32084 N. James Hoffner Bonnie Hoffner 5536 Sunset Landing Circle St. Augustine, Florida 32084 J. Stephen Alexander, Esquire [for Petitioners, A, B, D, I, J, M, S, T, V, X, and W] Upchurch & Alexander P.A. 200 First Union Bank Building Post Office Box 3956 St. Augustine, Florida 32085-3956 Homecomers, Inc. c/o J. M. Moore Harbor Engineering Co., Inc. 1615 Huffingham Road Jacksonville, Florida 32216 William H. Congdon, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Petitioner has provided reasonable assurance that the proposed project is not contrary to the public interest as set forth in Section 403.918(2)(a), Florida Statutes and Rule 17-312.300 et. seq., Florida Administrative Code. Whether Petitioner has reduced the environmental impacts of the project in conformance with Section 403.918, Florida Statutes and Chapter 17-312.200, Florida Administrative Code. Whether the Respondent considered the cumulative impacts of the project pursuant to Section 403.919, Florida Statutes.
Findings Of Fact The Department of Environmental Regulation is the administrative agency of the State of Florida with the authority to administer the provisions of Chapter 403, Florida Statutes and the rules pertaining thereto with regard to matters involving water quality and the dredging and filling of wetlands, as defined therein. The Intervenor, Manasota-88, is a public interest environmental protection and conservation organization incorporated under the laws of the State of Florida as a not-for-profit corporation. Manasota-88 is a citizen of the State of Florida for purposes of Section 403.412(5), Florida Statutes and thereby has standing as a party in these proceedings. Petitioner, VQH, is the permit applicant and is a wholly owned subsidiary of Republic Bank of Clearwater, Florida who acquired the tract in foreclosure proceedings. Respondent, DER, is the affected state permitting agency. On November 18, 1989, VQH applied for a permit to dredge and fill wetlands on a site in southern Pasco County for purposes of commercial development. The site is comprised of both uplands and wetlands and is located on the east side of U.S. Highway 19 in Holiday, approximately one mile north of the Pasco County border with Pinellas County. After the Department denied the initial application VQH modified the application to reduce the to be destroyed wetlands from 14 acres to 11 acres and on November 17, 1992 the Department executed an Intent to Issue the subject permit to VQH. On December 4, 1992 Manasota-88 timely filed its petition to intervene in opposition to the grant of the permit and these proceedings followed. In addition to the above the parties stipulated the following are not issues in these proceedings. Water quality standards; Outstanding Florida Waters; Threatened or endangered species; Navigation, flow of water, erosion or shoaling, and Significant historical and archaeological resources. As stated in the notice of Intent to Issue (Exhibit 12) The project site consists of 94 ac. of forested uplands and wetlands. The wetlands on site are located along a drainage divide; they drain to both the Anclote River on the east and the Gulf of Mexico on the west through a series of ditches, roadway culverts, canals, and natural wetlands. The 52.52 ac. of wetlands on site are mature, red maple dominated swamps typical of the Anclote River flood plain. This site previously included cypress as one of the dominant canopy species, as noted by the number of remaining stumps, but appears to have been logged within the last 40 years. The canopy is currently dominated by red maple; also present are sweetbay, water oak, swamp laurel oak, water tupelo and cabbage palms. Due to the substantial conflict in the evidence in this regard the evidence was insufficient to establish the erstwhile dominance of cypress in this area. The development proposed is in the southwest corner of the 94-acre tract just east of U.S. 19. Near the center of the proposed development a bell- shaped upland area extends north from the southern boundary of the property. Petitioner proposed to fill to the east and west of the bell-shaped uplands some 8.9 acres. The other 2.1 acres included in this requested permit are for a road along the southern edge of the property which will be an extension of Society Drive and provide a needed east-west corridor in this part of Pasco County. The principal concern of those opposed to the granting of this permit is the filling of the wetlands between the bell-shaped area westward to U.S. 19. This area consists of hummocks originating from fallen trees or logs on which the hardwood trees are located. Between these hummocks are deep pockets which contain water for extended periods. As stated by one witness whose testimony was generally corroborated by other witnesses. The VQH wetland represents a complex ecosystem. Due to the relief, complex flow patterns, muck depths and overall age of the system there is a high diversity of habitat for aquatic fauna and wetland dependent animals. The deepest and most complex section of the system on the site is the area proposed for permanent destruction. The diversity of aquatic fauna of the area to be filled is a function of the permanency of the pools dotting the landscape. The longer the site is wet through an annual cycle the more likely aquatic fauna with long life cycles will flourish. As an example, a number of aquatic insects require 5 or more months to hatch out, mature and emerge as adults to complete the life cycle. The longer water remains on the site the greater the number of species adaptable to the conditions will flourish. The importance of this is to develop high diversity and a well balanced population of not only the invertebrates but also the fishes and other animals dependent on these invertebrate life forms for food. (Exhibit 17, p.6) The project application is one of the most controversial ever received by the DER Southwest District Office, not only because of the proposed destruction of a valuable wetland area but also because of the high visibility of this project as one of the few undeveloped areas along the U.S. 19 corridor. A genuine concern expressed by several opponents of this application is that if this permit is granted, numerous other property owners of wetland properties along other major highways will also be requesting permits to fill and develop their properties. This is a valid concern; however, if the proposed mitigation is found to be adequate and replaces three acres of wetlands to every one destroyed, the state will gain wetlands and not suffer a permanent loss of wetlands. Other applicants could also be required to provide adequate mitigation to compensate for the proposed loss of their wetlands. Proposed findings submitted by DER and Manasota-88 extoll the virtues and benefits accruing to the state from the wetland area proposed for filling. It is accepted as fact that the proposed destruction is of a high quality hardwood wetlands and, absent adequate mitigation, is contrary to the public interest. Although there is testimony from Petitioner's witness that the standing water and long hydroperiods in this hardwood wetlands decreased the undergrowth that would otherwise be expected, this evidence does not materially detract from the ecological value of these wetlands. The testimony of Petitioner's witnesses that reducing the foot print of the proposed development from 13+ acres to 8.9 acres constitutes the minimum area for the proposed shopping center to be economically viable was not rebutted, although several DER employees opined that the project had not been adequately minimized. This leaves the principal issue to be decided is whether the proposed mitigation, if carried out as required by the draft permit approval, has a substantial probability of success. Intervenor's witnesses, except for Ann Redmond, DER's mitigation coordinator, are all employed in the DER Southwest District Office and all oppose granting the permit here involved primarily because of the historical lack of success of projects to develop fresh water hardwood wetlands. The proposed permit to be granted also involves the removal of an abandoned waste water treatment plant owned by Pasco County which is a potential source of pollution, modification of existing ditches which serve to channel water coming onto the property, placing culverts under the FPC road and right- of-way berm, and placing some 95 acres in a conservation easement. As provided in the notice of Intent to Issue (Exhibit 12), the mitigation for the loss of 11 acres of mature forested wetland shall include the following implementation plan: create and restore 18.6 ac. forested wetland from existing uplands; remove an abandoned wastewater treatment plant and create 8.8 ac. of forested wetlands; convert an existing 2 ac. ditch contiguous to the wastewater treatment plant to a forested wetland system; convert 2.95 ac. of existing ditch within a Florida Power Corp. (FPC) easement to an herbacious wetland system; restore 0.75 ac. of disturbed herbacious wetlands within the FPC easement by regrading and planting with shrubby species; create 1.49 ac. shrubby wetlands from uplands within the FPC easement. install two culverts within the FPC easement roadway; restore 1.55 ac. of upland by planting with mesic and traditional hardwood species; and place all created, restored and converted wetlands (34.60 ac.) and the remaining existing wetlands and uplands on site, 60.78 ac. including 15.42 ac. within the FPC easement, in a perpetual conservation easement. The impact area has a tree density of approximately 1000 trees per acre. Red maple was found at a density of approximately 157 per acre and black haw was found at approximately 230 shrubs per acre. To recreate this density Petitioner proposes planting one gallon size trees on 6 foot centers over 50 percent of the site. However, it is proposed to create a more natural effect by clumping some trees together in some areas and space them further apart in other areas. These one gallon trees will be 30 percent pond cypress, 30 percent pop ash, 30 percent black gum and a 10 percent a mix of swamp bay, red maple and laurel oak. More of the mature trees will be removed from the impact site by spading (remove tree and root system with a machine designed to do this) and transplanting to the mitigation areas. The conditions included in the DRAFT permit with the notice of Intent to Issue contain detailed clearing and planting requirements which, in some respects, differ from the Petitioner's testimony presented at this hearing. As an example, under paragraph 7 the following is required: The wetland creation restoration, conversion, upland restoration, and upland and wetland preservation, shall be conducted prior to or concurrent with the wetland impacts, and shall be completed to the point of planting of tree species no later than one year after the commencement of the wetland impacts. Under paragraph 9 the following requirement appears: A minimum of one foot of fresh organic soils or muck, stock piled for not longer than 7 days, obtained from the wetland impact site, shall be uniformly spread over the entirety of the wetland creation and conversion areas prior to the final grading. Within thirty days of the completion of grading, the wetland creation and conversion areas shall be surveyed. A topographical map, showing a minimum of one foot contour intervals based on a 50 foot grid, certified by a registered land surveyor or professional engineer, shall be submitted to the Bureau of Wetland Resource Management in Tallahassee and to the Southwest District Office in Tampa within 60 days of the completion of the final grading. In this connection it is essential that the tree spading be accomplished during the trees' dormant period from November to March. Petitioner was anxious to have an expedited hearing so the tree spading could be completed by early march. It is presumed that all of the transplanting and spading is intended to be done between November 1993 and March 1994 if this permit is granted. Petitioner's witnesses indicated that if the transplanting (by spading) is not done in the plant's dormant period their survival rate will be low and nursery grown plants would be used in lieu of spading. The draft period requires 7 gallon trees to be used to substitute for trees not spaded. Petitioner proposes, and the DRAFT permit requires, the Petitioner to grade the existing uplands intended for conversion to wetlands to provide gradients low enough to qualify as wetlands and be inundated at various times of the year. Petitioner proposes to establish a wetland area where the water will move across the property in a sheet flow eastward towards the Anclote River basin. The spread of organic material over the planting sites will improve the probability of success of the mitigation project by reason of the seeds in the soil plus the benefit of the muck to the propagation and growth of the planted trees and scrubs. The water level in the newly created wetlands will be monitored by gauges established at the easterly part of the property and the hydroperiod for the area established and maintained. Further, in the first two years of the planting, Petitioner will provide for temporary irrigation of the newly planted area if necessary. Also Petitioner will maintain 85% survival for the trees planted in the first two years by planting additional trees as needed. Petitioner also proposed and the DRAFT permit requires the removal of some of the hummocks from the impact area to the newly created wetlands.. In 1990 the Florida Legislature instructed DER to assess the use and effectiveness of mitigation in Wetland Resource Regulation permitting. The study was intended to evaluate wetland mitigation projects required by DER permits in terms of compliance with both: 1) the permit conditions, and 2) whether the created wetlands were biologically functional, i.e., animal species diversity and density, plant reproduction, water quality, hydroperiod, etc. That study resulted in a Report on the Effectiveness of Permitted Mitigation dated March 5, 1991. (Attachment B to Exhibit 16) This study found a high rate of noncompliance with mitigation requirements in permits issued. The ecological success rate of mitigation design for freshwater permits was only 12 percent. However, it was predicated that with remedial action this rate could rise to 41%. The study made recommendations for improvements in DER policy and rules involving mitigation projects which included the consideration of mitigation options in the following sequence: enhancement of degraded wetlands, or restoration of historic wetlands; preservation of other wetlands in conjunction with other forms of mitigation; and wetland creation. This committee further recommended that Creation should only be accepted if review of the creation proposals indicates that it includes features to ensure that it will be successful. In all cases, if the proposed mitigation does not provide reasonable assurance that the wetland losses can be offset, the project should be denied. (Exhibit B of Exhibit 16) Without changing rule provisions DER began to orient its view of the minimization process that is required by Rule 17-312.060(10) by stressing that step in the process. They also re-assessed the use of wetland creation from uplands as a common mitigation option, describing it as the least preferable mitigation option, especially for freshwater wetlands. Additional studies conducted on behalf of the South Florida Water Management District and the St. Johns River Water Management District found lack of compliance with mitigation requirements, and lower success rates for fresh water mitigation than salt water mitigation. The March 5, 1991 Report found the following four factors to be critical in assuring a high likelihood of success: Constructing the wetland floor at the proper elevation relative to the groundwater table. There must be a hydrologic connection between the mitigation wetland and other waters of the State to ensure the wetland is within Department wetland resource regulation jurisdiction and functions as a water of the state. The topography and configuration of the wetland should coincide with the permit requirements to yield the required wetland acreage. Regular maintenance of the wetland to reduce exotic and nuisance plants during its establishment. The mitigation proposal submitted by Petitioner addresses each of the above four factors. Additionally, Petitioner is required to post a bond before commencing the project of $440,000 (110% of the estimated cost of the mitigation) to ensure sufficient funds are available to complete the mitigation project. Generally speaking a mature wetland is developed only over an extended period of many years. On the other hand the attempt to develop wetlands from uplands to provide mitigation for the destruction of other wetlands is quite new, leading opponents to conclude this to be more art than science. Serious studies and experiments with developing wetlands have occurred only in the past 10-15 years. These studies have not only indicated that wetlands can be created, but also have shown that developing freshwater wetlands is a very difficult task requiring dedication and close attention to the project. During the past decade a lot of misconceptions have been corrected but the process has not as yet reached the stage for the success of a project to generate freshwater hardwood wetlands can be guaranteed. A similar lack of progress has been made in creating freshwater undergrowth (shrubs). While the intent to deny this application in 1989 was signed by Carol Browner, DER Director, and the intent to grant was signed by Janet Llewellen, Bureau Chief for the Bureau of Wetland Resource Management, the ultimate decision in both instances was made by Browner, who, in deciding to grant the instant application, overruled the recommendation of a majority of the DER staff involved with this project. This accounts for the conditional "if successful" acceptance of the mitigation plan by those DER staff members who testified in support of the application.
Recommendation It is RECOMMENDED that permit (File No. 511731859) be issued to VQH Development, Inc. in accordance with and subject to the conditions contained in the DRAFT permit attached to the notice of Intent to Issue Permit. DONE and ORDERED this 26th day of March, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 26th day of March, 1993. APPENDIX Proposed findings submitted by Petitioner are accepted except: 18. Second sentence. Accepted as uncontradicted testimony of Petitioner's witness. 30. Rejected that there is a diminished overall value of these wetlands because of reduced or no understory. 36. First sentence rejected. No credible evidence was submitted that any historic wetlands on this property were filed by man. 38. First sentence rejected as confusing. 40. Third sentence rejected as fact; accepted as the testimony of VQH contractor. 61. Sentence 5(2) rejected as fact; accepted as a hoped for condition. Proposed findings submitted by Respondent are accepted, except: 7. Whether red maple or laurel oak is the dominant species was disputed. However, both tree species are present in significant numbers and naming one dominant is irrelevant. 19. Whether red maple or laurel oak is the dominant species was disputed. However, both tree species are present in such significant numbers that naming one dominant is irrelevant. Proposed findings submitted by Intervenor are accepted, except: 12. Property is rectangular in shape. 18. Last sentence rejected as contrary to witness' testimony. 20. Rejected as irrelevant. VQH project has been approved in principle by Pasco County. 22. Rejected as irrelevant. VQH project has been approved in principle by Pasco County. 28. I would characterize the mitigation proposals as neo-typical. 34. Second sentence rejected. Red maple and laurel oak dominate site. 38. Second and third sentences irrelevant as to cause of thin understory. 60. Rejected as fact. This is a conclusion of law. 62.-66. Rejected as fact. These are conclusions of law. Accepted as unwritten rule. Unwritten rule not proved valid in these proceedings. 68d. Last sentence. See HO #14. Rejected as f act. This is a legal conclusion. Rejected. This opinion of one witness is in conflict with the actions of DER in this instance. 83. Absent a definition of success the opinion here conflicts with the testimony of BRA's expert. 96.-99. These are legal conclusions. 101.-102. Rejected. VQH submitted numerous plans showing the reduction of the footprint on wetlands. 103. Rejected. Mudano also testified that the property on which all such stand alone stores are owned by the store. 105. Word practical rejected. 107. Rejected. Notice of Intent to Issue carries with it the conclusion that the project had been minimized as required by statutes. This is a conclusion of law. Rejected. 115. The date of February 1, 1993 a time to start on this project was not mentioned in this hearing. See HO #23. 117. While this mitigation plan may be consistent with present day requirements it is much more complex and detailed than were former mitigation plans which did not meet expectations. 118.-119. Rejected. 120. Conclusion of Law. 122. Conclusion of Law. 122. (Second) Last sentence rejected. 124. Rejected. 126.-128. Conclusions of Law. 130. Rejected. 132.(first)-134. Conclusions of Law. 133.-134. Conclusions of Law. COPIES FURNISHED: John W. Wilcox, Esquire Post Office Box 3273 Tampa, Florida 33601 3273 E. Gary Early, Esquire Post Office Box 10555 Tallahassee, Florida 32302 2555 Buddy Blair, Esquire 202 Madison Street Tampa, Florida 33602 W. Douglas Beason, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399 2400 Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Daniel H. Thompson, Esquire Acting General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399 2400 Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399 2400
