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
Findings Of Fact Introduction Respondent, South Florida Water Management District (SFWMD or District), is a creature of the legislature having been created under Chapter 373, Florida Statutes (1985). It has jurisdiction over and administers all "waters in the District", including the regulation of the management and storage of surface waters. According to the map depicted in Rule 40E-1.103, Florida Administrative Code, the SFWMD's jurisdiction appears to extend over all of Monroe, Dade, Broward, Collier, Palm Beach, Martin, Lee, Hendry and Glades Counties and portions of St. Lucie, Okeechobee, Osceola, Charlotte and Orange Counties, Florida. A precise legal description of its boundaries is found in Subsection 373.069(2)(e), Florida Statutes (1985). Under the District's surface water management permitting authority, a permit is required for the construction of any works that impound, impede, obstruct or otherwise impact the flow of water, irrespective of whether the property contains a wetland of any nature. To implement the above jurisdiction, the District has adopted by reference in Rule 40E-4.091(1)(a), Florida Administrative Code, a technical manual entitled "Basis of Review for Surface Water Management Permit Application within the South Florida Water Management District" (Basis for Review). The manual was first adopted in 1977 and has been readopted with various modifications since that time. The most recent version became effective in July 1986. The manual contains criteria to be used by the District when reviewing permit applications for the construction and operation of surface water management systems within its jurisdictional boundaries. These criteria specify the manner in which an applicant must provide reasonable assurance that a project meets SFWMD objectives, and include both water quantity and quality considerations as well as environmental standards designed to protect fish and wildlife. One feature of the Basis of Review is a provision allowing an applicant to submit and implement innovative project designs as long as they meet District objectives. Many of the principles embodied in the Basis of Review have been carried forward into the challenged rules. An applicant may apply for a conceptual approval or a construction and operation (C&O) permit. The conceptual approval is a permit for a master plan when the applicant is not ready to submit all detailed drawings necessary to obtain a C&O permit. It is especially appropriate for large projects developed in phases. A conceptual approval does not authorize construction of a surface water management system, but rather authorizes a master plan with which subsequent construction and operation must be consistent. Once a conceptual permit has been issued, the individual C&O permits are then applied for and issued consistent with the terms of the conceptual permit. In 1986 the Legislature enacted Section 373.414, Florida Statutes (Supp. 1986). That section requires the District, not later than March 31, 1987, to "adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department (of environmental regulation) for purposes of regulation of dredging and filling." The statute goes on to require that the rule include the following: One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that shows the fish and wildlife values of such areas to be minimal; Criteria for review of fish and wildlife and their habitats for isolated wetlands larger than the minimum size; Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use; and Provisions for consideration of the cumulative and offsite impacts of a project or projects. The statute further provides that until the District adopts specific isolated wetland rules, its review of fish and wildlife impacts in small isolated wetlands is limited to: Wetlands that are 5 acres in size or larger; or Wetlands that are used by a federal or state designated threatened or endangered species; or Wetlands located within an area of critical state concern designated pursuant to chapter 380; or Wetlands that are less than 5 acres in size having a cumulative total acreage greater than 30 percent of the total acreage proposed for development, within a development project greater than 40 acres in size. In response to the foregoing legislation, and after a series of meetings and workshops, on November 7, 1986 the District proposed to amend existing Rules 40E-4.091 and 40E- 4.301, Florida Administrative Code. The text of the amended portion of Rule 40E-4.301 reads as follows: 40E-4.301 Conditions for Issuance of Permits. (1)(m) is not against public policy, and will meet the general and specific criteria in the document described in Rule 40E-4.091(1)(a), and will meet the criteria for isolated wetlands, which are found in Appendix 7 of the document described in Rule 40E-4.091(1)(a) (Underscored words represent the proposed amendment.) In conjunction with the foregoing, the District prepared an economic impact statement (EIS) which read as follows: SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT OF THE RULE: 1. COST TO THE AGENCY: The proposed rule largely reflects existing policy and procedure but enunciates the specific guidelines the District applies in permitting decisions. The rule strikes a balance between specific quantitative guidelines and administrative flexibility with regard to permitting decisions. While there may be some initial implementation costs to the District, a minimal total cost increase to the agency is expected. The specific quantitative guidelines provided in the Appendix are expected to facilitate agency decisions regarding required mitigation- compensation, so that in the long run costs may actually decline as a result of implementation of the new criteria. There are no plans to change the size of District regulatory staff as a result of implementation of the standards in Appendix To the extend that additional staff is required in the future to address the impacts of permitting decisions on wetland habitat on threatened and endangered species, this impact can more correctly be attributed to the adoption of Section 373.414, F.S., by the Florida Legislature than to this rule. COSTS AND BENEFITS TO THOSE DIRECTLY AFFECTED: Appendix 7 provides the applicant with the choice of either meeting specific quantitative project design criteria or proposing a unique project design which will be reviewed by a qualitative standard to ensure that the proposed project complies with the District's objective of protecting isolated wetlands and their associated fish and wildlife functions and values. The requirements that project applications which proposed to impact wetlands provide reasonable assurances, such as mitigation/compensation, maintenance plans, monitoring and a guarantee of performance, is expected to result in some cost increases to permittees. Such require- ments are likely to improve the effectiveness of District protecting the water and related land resources of the District. IMPACT ON COMPETITION AND THE OPEN MARKET FOR EMPLOYMENT: No significant impact on competition and the open market for employment is expected. IMPACTS ON SMALL BUSINESS: The quantitative criteria in the Appendix set differential standards on the basis of isolated wetland size rather than firm size. Large projects are expected to have slightly greater flexibility in meeting the reasonable assurance requirements than small projects; however, the differential impact on small business, as defined in Section 288.703, Florida Statutes, is not expected to be significant. DATA AND METHODS USED: Data from the computer files of the District's Resource Control Department were the primary source of data used. Appendix 7 adopted by reference in amended Rule 40E- 4.301(1)(o) is a document entitled "Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District - Appendix 7 - Isolated Wetlands" (Appendix 7). As originally proposed for adoption, the Appendix contained sections 1.0 through 6.0 covering the following subjects: introduction (1.0), glossary (numbered as 2.0 and containing sections 2.1, 2.2, 2.3, 2.4, 2.7., 2.9 and 2.10), size threshold (3.0), review procedures for projects which propose to impact isolated wetlands (numbered as 4.0 and containing sections 4.1-4.5), review criteria (5.0), quantitative design criteria (5.1.1., 5.1.2., 5.1.3, 5.1.4, 5.1.5, 5.1.7 and 5.1.8), qualitative criteria (5.2-5.2.3) and project guarantee criteria (numbered as 6.0 and containing sections 6.1-6.3). For purposes of surface water management permitting, Appendix 7 applies only to activities in isolated wetlands while all other activities are subject to the criteria embodied in the Basis of Review. On November 26, 1986 petitioners, Orlando Central Park, Inc. (OCP), Real Estate Corporation of Florida, N.V. (REC), and National Association of Industrial and Office Parks, Region IV (NAIOP), filed a Petition for Administrative Determination of Invalidity of Proposed Rules wherein they sought to have declared invalid proposed rules 40E-4.091(1) and 40E-4.301(1)(o). In their petition, petitioners generally challenged all or portions of sections 2.0, 3.0, 4.0, 5.0, 5.1., 5.2 and 6.0-6.4 in Appendix 7 as well as the sufficiency of the EIS. In light of the above petition having been filed, the District again considered its proposed rules on January 8, 1987 and amended Appendix 7 in a number of respects. The revised Appendix has been received in evidence as joint exhibit number 2. As a result of those revisions, and as reflected in their post- hearing pleadings, petitioners have limited their attack to sections 2.2, 4.2b, 4.3, 4.4, 5.1.1a, 5.1.1b, 5.1.1d, 5.1.2, 5.1.3 and 5.1.7 in Appendix 7 and the adequacy of the EIS. On January 15, 1987 intervenor/respondent, The Florida Audubon Society (intervenor or FAS), filed a petition to intervene. This petition was granted conditioned upon intervenor proving up at final hearing its standing in the proceeding. Standing In order to challenge a proposed rule, a party must generally demonstrate that its substantial interests will be affected by the challenged rule. To do so, petitioners presented evidence on this issue at final hearing. In the same vein, the standing of intervenor was also questioned, and it too presented evidence to demonstrate its right to have access to this proceeding. REC - REC is the owner and developer of a residential and commercial development consisting of approximately 2,400 acres known as the Buenaventura Lakes Planned Unit Development between Kissimmee and St. Cloud in Osceola County. The project has been subdivided into what is known as Basins 1, 2 and 3, of which the undeveloped acreage lies within the latter Basin. The corporation has plans to develop the remaining acreage into single family and multi-family residential and commercial developments but has not yet obtained the necessary environmental permits for the undeveloped tract. Through the testimony of an REC representative, the undeveloped acreage was described as having open grasslands, wooded areas and low, marshy areas. Some portions of the land were also described as a "wet, marshy, boggy area." However, their specific size was not disclosed, and there was only conjecture on the part of petitioners' expert that the areas were in fact isolated wetlands as defined in the proposed rule. The representative fears that if jurisdictional isolated wetlands are located within Basin 3, and the rules are adopted, it will impact upon REC in that more restrictive permits will be required prior to any further development of the land. The District has previously issued construction and operation permits for Basins 1 and 2 and necessary Department of Environmental Regulation (DER) permits have also been obtained. None have been sought or issued for Basin 3, and there was no evidence that a letter of conceptual approval covering drainage in Basin 3 has been issued by the District. Had one been issued, the project might be grandfathered and exempt from the pending rules. Even so, the record does not support a finding that isolated wetlands as defined in the proposed rule are definitely located within Basin 3 so as to make REC's substantial interest affected by this proceeding. NAIOP - The NAIOP is a national non-profit organization of developers, consisting of some 6,000 members nationwide. In Florida, it has four chapters (Jacksonville, Fort Lauderdale, Orlando and Tampa) and "several hundred" members. As developers of office, industrial and commercial real estate, it is necessary that its members obtain permits from the District on certain projects within the District's jurisdiction. The association monitors all rulemaking proceedings affecting its members, and has actively lobbied the legislature on environmental matters. It has appeared before the District and DER concerning rules and policy, especially those that affect the permitting process. According to an NAIOP representative, Eric B. Eicher, approximately 30 percent of its state members do business in SFWMD jurisdictional territory. However, Eicher had no first-hand knowledge as to how many members owned property within the District, or whether any members are intending to develop isolated wetlands which would be subject to the proposed rule. Indeed, he admitted that only two members had even talked to him about the proposed rules. As such, the NAIOP has not demonstrated any immediate and discernible impact that the proposed rule would have on its members. OCP - The OCP is a wholly-owned subsidiary of Martin-Marietta Corporation, a large corporation with offices in the Orlando area. However, Martin-Marietta is not a party in this proceeding. OCP itself is the owner and developer of an office, industrial and commercial park known as Orlando Center Park in Orange County, Florida. In addition, OCP acts as the developer of certain properties owned by Martin-Marietta. At the present time, OCP has approximately 2,400 acres in its own name which it intends to develop. They are generally located in an area west of the Florida Turnpike, south of Sand Lake Road, north of the Beeline Expressway and east of 1-4. Various aerial photographs and maps of the area were received in evidence as petitioners' exhibits 5, 8 and 9. It is undisputed that this property lies within the territorial jurisdiction of the SFWMD. On November 17, 1977 the District issued a permit granting conceptual approval of a master plan for the development of certain properties owned by OCP. However, the permit itself (petitioners' exhibit 15) did not include a review of impacts on wetlands for OCP's property. Therefore, the project is not grandfathered under proposed rule 4.1, and is subject to the new rules. If the proposed rules are adopted, OCP would have to modify its master plan and reduce the amount of its sellable or developable property. In two jurisdictional determinations performed by DER in 1983 and 1984, DER identified various isolated wetlands on OCP's property not subject to DER jurisdiction. These are located on what are identified as phases 8-B and 9 of the undeveloped tract of land (petitioners' exhibits 8 and 13). Since it is undisputed that OCP intends to develop this land, OCP is substantially affected by the proposed rules. FAS - Intervenor, which supports the rule amendments, is a non-profit association with principal headquarters in Maitland, Florida. Its membership numbers some 30,000, of which a large part live in Southeastern Florida and within the territorial jurisdiction of SFWMD. Although only one member (its president) testified at final hearing, it was the president's contention that "most" of its members support the proposed rules and the perpetuation of the isolated wetland as a function for wildlife. Through documentation offered in evidence as intervenor/respondent's exhibit 1, it was established that FAS owns various tracts of undeveloped land in Lee, St. Lucie and Collier Counties, which lie within SFWMD's boundaries. A part of these lands are isolated wetlands, and other parts are adjacent to wetlands areas. Although FAS expressed a fear that adjacent wetlands may be developed if the proposed rules are invalidated, it offered no proof of impending developments on isolated wetlands, or that such development would occur on properties adjacent to its own. Therefore, any adverse impact is remote and speculative, and has no immediacy or reality. The FAS has entered into a contract with the Game and Fresh Water Fish Commission to administer the Florida Breeding Bird Atlas Program. Under the program, FAS has contracted to establish a baseline of the numbers and types of breeding birds in the State. The FAS fears that if the rule amendments are not adopted, the destruction of wetlands will occur, thereby interfering with its ability to carry out the contract. Again, however, it offered no proof of impending developments on adjacent isolated wetlands, or otherwise established that its substantial interests under the contract would be affected. Economic Impact Statement Other than the introduction of the EIS into evidence as joint exhibit 4, there was no relevant factual evidence presented by the parties concerning the insufficiency or inaccuracy of the EIS. It is noted, however, that the District merely estimated that the proposed rules would "result in some cost increases to the permittees", and did not attempt to precisely identify the economic impact. Respondent offered into evidence various documents upon which it relied in preparing the EIS. However, such documents are hearsay, and it was not shown what competent evidence, if any, they were intended to supplement and explain. The Challenged Rules Petitioners' real concern lies with portions of Appendix 7 which has been adopted and incorporated by reference by Rule 40E-4.301(1)(o), Florida Administrative Code. That document spells out in detail the criteria that will apply to applications for surface water management permits where the proposed activity affects isolated wetlands. As noted earlier, the Appendix is divided into a number of sections, which for ease of discussion will be referred to as "rules." Each challenged "rule" will be dealt with separately. Rule 2.2 - This rule defines an "isolated wetland" as follows: Any wetland not under the jurisdiction of the Department of Environmental Regulation (DER) for the purposes of regulation of dredging and filling. Multiple individual wetlands normally connected by surface flow during a wet season with average rainfall shall be presumed to be an isolated wetland. The first sentence of the rule simply provides that any wetland not subject to DER dredge and fill jurisdiction is to be considered an isolated wetland and subject to Appendix 7 criteria. Conversely, if a wetland is subject to DER jurisdiction, any District regulated activity affecting that land must be considered under the existing Basis of Review criteria. Petitioners' concern is with the second sentence of the rule and is that whenever multiple isolated wetlands are connected by surface flow during the wet season, they believe the rule would confer jurisdiction in SFWMD not only over the isolated wetlands themselves, but also the uplands that lie adjacent to and between the individual wetlands. But, through credible and persuasive testimony, it was established that this is not the intent or result of the proposed amendment. Indeed, it was established that jurisdiction is intended to lie only over the wetlands themselves, and not the connecting uplands. Petitioners also object to the District aggregating small isolated wetlands into a single larger isolated wetland for jurisdictional purposes. However, such aggregation is necessary because of the biological interaction between the small wetlands. Petitioners further voiced some criticism of the provision in the rule that connected wetlands shall be presumed to be an isolated wetland. Even so, the rule allows an applicant to present evidence to contradict this presumption. Finally, despite suggestions to the contrary, there was no evidence of any conflicting DER policy or concept regarding isolated wetlands, how such wetlands are defined by DER, or that DER prefers the District to follow such policy or definition. Rule 4.2b. - This rule prescribes certain information that must be filed by an applicant for a permit whenever the project impacts isolated wetlands. As is pertinent here, Section b. requires the following to be filed with the application: b. A list of all plant and animal species listed as endangered, threatened or of special concern pursuant to 50 Code of Federal Regulations, Section 17.12, and Rules 39-27.03, 39-27.04 and 39-27.05, Florida Administrative Code, which are incorporated by reference and made a part of this rule which utilize the area and an evaluation of the probable significance of the area to the listed species. Petitioners object to the requirement that an applicant submit a list of all plant species of special concern as defined by Rule 39-27.05, Florida Administrative Code. This rule was promulgated by the Game and Fresh Water Fish Commission and designates some forty-three plant "species of special concern". Petitioners' objection is based on the premise that the term "species" does not include plants, and that plant species are accordingly outside the purview of the District's permitting authority. However, they presented no evidence to support this construction of the term. In contrast, through testimony from a National Audubon Society employee, it was established that the term "species" not only includes animals, but plants as well. Mitigation/Compensation Rules - A number of rules within Appendix 7 make reference to mitigation and compensation proposals to be submitted by applicants whose projects impact isolated wetlands. As is relevant here, they include rules 4.3, 4.4, 5.1.1a., b. and d., 5.1.2, 5.1.3 and 5.1.7, all challenged by petitioners. These rules generally require or provide for mitigation when an applicant intends to impact or destroy all non-exempt isolated wetlands 0.5 acre to 5.0 acres in size. It is petitioners' contention that the District has no authority to require or otherwise provide for mitigation or compensation as a permit criterion. Mitigation is defined in rule 2.8 as "remedying isolated wetland impacts by restoring or enhancing affected habitat, or by creating similar habitat of equal or greater function". Compensation is defined in rule 2.9 as the "replacement of isolated wetlands with a mixture of wetland/upland habitat, unique upland habitat, or otherwise provide overall benefits to the natural system". Mitigation is a common practice in environmental permitting and has been routinely used by the District in its existing Basis for Review. Indeed, at the present time ``most'' applicants include a mitigation plan with their applications for permits. Even petitioners' expert conceded that the use of mitigation is "a reasonable practice" and has resulted in "better projects", and "better" protection of the water resources. Rules 4.3 and 4.4 require applicants who propose mitigation or compensation to submit certain information with their applications. This information is necessary to insure that the mitigation/compensation plan will be successful. It is also noted that mitigation is not used or required for every project, and can be avoided where a project has other built-in compensation features. The new rules simply continue existing agency policy. Rules 5.1.1a. and b. provide the following presumptions concerning mitigation and compensation: Mitigation or compensation for elimination of isolated wetlands between 0.5 and 5.0 acres in size, pursuant to Section 5.1.2 below, shall be presumed to maintain wetland functions. There is no presumption that the function of isolated wetlands over 5.0 acres in size can be maintained by measures other than protection as defined in Section 2.4 above. Protection of isolated wetlands over 5.0 acres in size shall be the preferred method of providing the required reasonable assurance, however, other reasonable alternatives proposed by the applicant will be considered. Section a. creates a presumption in favor of the applicant that mitigation or compensation, in ratios specified within the rules, shall be presumed to maintain the functions of isolated wetlands between .5 and 5 acres in size. Section b. eliminates this presumption for isolated wetlands over five acres in size since the District's experience has been that applicants have not generally been successful in mitigating larger wetlands, and that it is more difficult to mitigate and compensate for larger projects. Even so, the rule allows an applicant to present "other reasonable alternatives" to mitigation. Petitioners object to the presumption in Section b. since they contend it reposes in the District the authority to preserve isolated wetlands over 5.0 acres in size. However, this "authority" comes into play only when the criteria cannot be met, and the applicant fails to present "other reasonable alternatives". Rule 5.1.1d. provides as follows: (d) Protection of isolated wetlands or incorporation of isolated wetlands into surface water management systems in favored over isolated wetland destruction and mitigation or compensation. Wetland destruction and mitigation or compensation shall be considered only when there are no feasible project design alternatives for the particular site. Reasonable project design alternatives to isolated wetland impacts shall be considered. This rule essentially favors the protection of isolated wetlands as opposed to their destruction. It goes on to permit destruction and mitigation/compensation whenever there are no "feasible project design alternatives". In other words, the District has established a first priority of preserving wetlands whenever possible, and allowing destruction only when no "reasonable project design alternatives" are available. Under the latter situation, mitigation/compensation will then be required. Petitioners assert the term "feasible project design alternative" is not readily understood, or comprehensible to the average person. However, even their engineer stated he could "apply it", and that he "normally" goes about designing projects consistent with the terms of the rule. It was further established that the District construes the terms "feasible" and "reasonable" to be synonymous, and that the rule would not require an applicant to present a proposal that was prohibitively expensive, or technically unfeasible. Rule 5.1.2 also deals with mitigation/compensation and addresses mitigation ratios to be used by applicants. It reads as follows: Isolated wetland mitigation shall be implemented based upon ratios of acres wet- lands created, or restored to acres of wet- lands destroyed which provide reasonable assurance that the mitigation will be successful. The following ratios shall be presumed to provide such reasonable assurance for type-for-type mitigation: Forested swamp, non-cypress dominated-2. 5:1 Forested swamp, cypress dominated---2.0:1 Freshwater marshes 1.5:1 Ratios for mitigation with unlike habitat, including expanded littoral zones, or compen- sation shall be determined on a case-by-case basis. When type-for-type mitigation is provided as defined in Section 2.8 and accepted by the District prior to isolated wetland impacts, a one-to-one ratio shall be presumed to provide such reasonable assurance. The rule explains that the prescribed mitigation ratios provide reasonable assurance that the creation or restoration will be successful. It is a natural corollary to the District's mitigation/compensation policy. Testimony established that these ratios were reasonable, favor an applicant, and are consistent with the different natural communities to which they apply. Higher ratios of wetlands created to wetlands destroyed are necessary because of the time required for an artificially created replacement system to provide all of the previous native functions. Finally, the use of a one-to-one ratio when type-for- type mitigation is used reduces the amount of land required by an applicant for mitigation, and provides flexibility from the otherwise specified ratios. Rule 5.1.3 prescribes the use of mitigation/compen-sation where disturbed wetlands are impacted by a project. It reads as follows: Disturbed isolated wetlands may be developed and their loss compensated for by: Mitigation at ratios less than those required in 5.1.2, based on the degree of disturbance and the remaining functional qualities. Mitigation through restoration or other disturbed wetlands is preferred over wetland creation. Preservation of unique uplands or in- clusion of developable uplands within an up- land/wetland protected system. Mitigation or compensation shall not be required for isolated wetlands which do not provide fun- ctions and values as expressed above in Sections 1.0 and 5.0. Unlike rule 5.1.2., this rule provides for mitigation ratios based upon the degree of disturbance and the remaining functional qualities of the wetland. It is too is a natural corollary of the District's stated policy. It recognizes that some wetlands have been disturbed, and that the ratios prescribed in rule 5.1.2. are inappropriate and too rigid for a previously disturbed wetland. Rule 5.1.7 - The final rule challenged by petitioners provides for the establishment of "buffer zones" under certain conditions. It is petitioners' contention that, like many of the other cited rules, the District has no authority to adopt the rule because buffer zones in upland areas are not a part of the surface water management system. A buffer zone is defined in rule 2.7 as "an area adjacent to the isolated wetland which protects wetland function and minimizes adverse impacts of upland development on wetland function". The challenged rule reads as follows: Buffer zones may be required around all isolated wetlands that are to be protected or incorporated into a surface water management system to protect wetland function and mini- mize adverse impacts of upland development on wetland function. Actual delineation of the buffer zone may vary according to site specific conditions. Buffer zones which extends (sic) at least fifteen feet landward from the edge of the wetland in all places and averages twenty-five feet from the landward edge of the wetland will be presumed to be adequate. Prior to issuance of Construction and Operation permits, buffer zones shall be field verified and delineated in the field. Buffer zones may consist of undisturbed uplands, open water bodies, wildlife corr- idors or other natural or structural features which serve the purpose stated in Section 2.7 as appropriate for the particular site. Upland areas or wildlife corridors adja- cent to buffer zones may be incorporated as compensation areas, provided they are in excess of the minimum buffer zone and meet all other requirements for compen- sation areas. Under current District policy, buffer zones are required around wetlands whenever they are necessary to maintain the integrity of the wetland. They are a reasonable tool in the District's arsenal to protect water, fish and wildlife resources. Testimony established that they are particularly essential when an applicant proposes to build a project immediately adjacent to a wetland so that erosion or destruction of the wetland may be avoided. The rule merely extends the District's existing policy to isolated wetlands.
Findings Of Fact Petitioner has submitted an application to the Respondent for a permit to undertake a dredge and fill project at the easterly end of Lake Winona in Volusia County, Florida. The specific area involved is circled in red ink on a map which was received in evidence at the hearing as Petitioner's Exhibit 1. Petitioner contemplates the dredging and removal of an approximately 130' x 185' marsh which is adjacent to a canal at the extreme eastern tip of the lake. The canal was constructed some years ago by unknown persons. Petitioner wants to utilize the dredged material to fill in a dogleg at the eastern end of the canal, and to construct a berm, or dyke, and a retention pond. The Petitioner owns a portion of the lakefront property which adjoins the proposed project. A portion of the project would be on land owned by other individuals who have apparently consented to the project, and intend to pay for a portion of it. It is Petitioner's desire to replace the marshland with a sandy beach. A drawing of the area which shows the portion of the canal which would be filled, and the portion of the marsh which would be excavated was received in evidence as Petitioner's Exhibits 5. A cross sectional diagram which depicts the marsh, or muck land which would be removed, the canal which would be filled, and the berm or dyke which would be constructed was received in evidence as Respondent's Exhibit 8. Petitioner originally attempted to accomplish his proposed project without seeking a permit from the Respondent. Before work was stopped, a portion of the marshland which the Petitioner is seeking to remove was dredged. Lake Winona is a relatively undisturbed and pollution-free lake in comparison to most of the lakes in central Florida. The YMCA of Daytona Beach maintains a campground on land which it owns adjacent to the lake. The site of the camp is marked in purple ink on Petitioner's Exhibit 1. The YMCA and its members are the primary recreational users of the lake. A fernery has been operating for some years on land adjacent to the tip of the canal, a portion of which the Petitioner is proposing to fill. During certain periods large amounts of water are discharged from the fernery into the lake. The pattern which the discharged water follows in flowing into Lake Winona is depicted with red arrows on a drawing which was received in evidence as Respondent's Exhibit 1. Most of the water is discharged directly, without being filtered in any manner into the canal which the Petitioner proposes to fill. A small portion of the water is discharged through the marsh which the Petitioner proposes to dredge. Marshlands, and other transitional zones surrounding water bodies are of crucial importance to the water-quality of the body, and to preservation of fish and wildlife resources in the water body. A band of marshland, occasionally broad and at times a mere fringe, surrounds nearly all of Lake Winona. This band of marshland is critically important to the water quality of Lake Winona, and to preservation of the fish and wildlife resources of Lake Winona. The marshlands serve as a filtration system for runoff which enters the lake from uplands. The marshlands also serve as a habitat for fish and wildlife species, and forms an essential part of the food chain for aquatic wildlife in the lake. The marshland which the Petitioner is seeking to dredge performs all of these functions to a limited extent. Because of its proximity to the fernery, and to the canal, however, this particular marsh area does not serve as a particularly effective filtration system, wildlife habitat, or food producer. Because of a sand fill which is located upland from the marsh, most of the general upland runoff is diverted away from this particular marsh area. The primary runoff for which the subject marshland could be called upon to serve as a filtration system comes from the fernery. The marshland is unable to serve this function for two reasons. In the first place, most of the runoff from the fernery is discharged directly into the canal which adjoins the marsh. This runoff is not filtered in any way as it flows through the canal into the lake. In the second place, runoff from the fernery which does reach the marsh reaches only a small corner of it, and this small amount of marsh is not capable of performing such a formidable filtration task. Tests reveal that virtually the same amount of nutrients are discharged through the marsh from the fernery runoff as are discharged directly into the canal from the fernery. The subject marsh may serve to a limited extent as a habitat for aquatic wildlife. That extent is, however, extremely minimal. The marsh is submerged only approximately thirty percent of the year. The overabundance of nutrients in the marsh which come from the fernery would appear to make the marsh an unpalatable natural habitat. Large quantities of runoff from the fernery have caused considerable erosion in the area which the Petitioner proposes to fill. In the weeks just prior to the hearing, a severe amount of erosion occurred. This erosion is depicted in photographs that were received in evidence as Petitioner's Exhibits 2, 3, and 4, and in slides which were received in evidence as Respondent's Exhibit 10. The Petitioner's proposed dredge and fill project is not likely to cause any adverse impact upon the water quality of Lake Winona. As has already been stated, very little upland runoff flows through the marsh area which the Petitioner proposes to dredge. The runoff which does enter the marshland is primarily from the fernery, and the marshland is not able to provide an effective filtration of the large amounts of nutrients contained in this runoff. The most immediate source of pollution in Lake Winona is the fernery. Most of the runoff from the fernery is discharged without the benefit of any filtration at all into the canal, and then directly into Lake Winona. The Petitioner's proposed project would provide a retention pond. Runoff from the fernery would be discharged directly into the retention pond, and would not reach Lake Winona until after it had filtered through a berm which would be constructed from the muck, or fill dirt taken from the marshland. Petitioner's project can be expected to have a positive affect upon water quality in Lake Winona because runoff from the fernery would no longer be discharged directly into the lake. Petitioner's proposed project is not likely to cause any increased erosion. Considerable erosion is already occurring in the area as a result of substantial runoff from the fernery. Petitioner's project will prevent this erosion. The removal of the marshland is not likely to cause any additional erosion because very little upland runoff flows through the marsh. Petitioner's proposed project is not likely to have any adverse impact upon the fish and wildlife resources of Lake Winona. As has already been stated, the marshland which would be removed provides an extremely limited habitat for wildlife, and an inefficient link in the food chain due to its proximity to the fernery and to the canal, and due to the fact that it is submerged only thirty percent of the year. The Petitioner has agreed to permit the primary recreational user of Lake Winona, the Daytona Beach YMCA, to utilize the area involved in this permit application. He has agreed to permit members of the YMCA to land boats in the area, and to use adjoining lands for supervised recreational purposes. The Respondent has pointed out that even though the removal of the subject marshland may not have any clearly measurable impact upon the water quality, and wildlife resources of Lake Winona, the cumulative effects of a piecemeal removal of a considerable amount of the marshlands surrounding the lake would have a seriously detrimental effect. The evidence offered at the final hearing in this case supports that proposition. The Respondent fears that the granting of a permit to the Petitioner in this case would mandate a granting of similar permit applications from other owners of property which adjoins Lake Winona. This fear is misplaced in the instant case. The canal and the fernery which adjoin the Petitioner's property render the instant situation unique. If not for the canal and the fernery, it would appear that removal of the marshland would be likely to have an adverse impact upon Lake Winona, even if the impact could not be specifically measured because of the cumulative effect pointed out by the Respondent. Pollution and erosion being caused as a result of discharge from the fernery, and the existence of the canal necessitate the taking of some action. Petitioner's proposed project will be helpful in alleviating these circumstances. Petitioner has given reasonable assurance that the proposed project will not have an adverse impact upon the water quality of Lake Winona, or upon the fish and wildlife population of Lake Winona. Petitioner's proposed project does not, however, provide the best solution to the problems resulting from the fernery and the canal. The most ideal solution would be to fill the entire canal with fill dirt from uplands areas, and to restore the entire area to a marshland, which was its original natural state. Other somewhat less dramatic, but desirable solutions would be to dredge smaller amounts of the marshland than proposed by the Petitioner, and to fill the canal from those sources, restoring some of the subject area to its original state.
The Issue The issues to be resolved in this proceeding concern whether an environmental resource permit (number 4-109-0216-ERP) (the ERP) should be modified to allow construction and operation of a surface water management system (the project) for a residential development known as EV-1, in a manner consistent with the standards for issuance of ERPs in accordance with Florida Administrative Code Rules 40C-4.301 and 40C-4.302.
Findings Of Fact The applicant MCCDD is a unit of special purpose government established in accordance with the provisions of Chapter 190, Florida Statutes for purposes enunciated by that statute. MCCDD has applied for the permit modification at issue in this proceeding. The District is a special taxing district created by Chapter 373, Florida Statutes. It is charged with preventing harm to the water resources of the district and to administer and enforce Chapter 373, Florida Statutes, and related rules promulgated thereunder. Petitioner Larsen was born in Daytona Beach, Florida. Sometime early in 2002 she apparently moved to the Crescent Beach area and lived for 5-6 months. Crescent Beach is approximately 30 minutes from the EV-1 site. Since October 2002, Petitioner Larsen has been a resident of Live Oak, Florida. She resided for most of her life in Daytona Beach, approximately one hour and 20 minutes from the site. She has been involved with the approval process of the entire Palencia Development (DRI) since 1998, of which the subject parcel and project is a part. The Petitioner likes to observe wildlife in natural areas and to fish, swim, and camp. Ms. Larsen has visited the Guana River State Park (Park) which borders the Tolomato River. Her first visit to the Park was approximately one to two years before the DRI approval of the Palencia project. Ms. Larsen has used the Park to observe birds and other wildlife and to fish. She has fished the Tolomato River shoreline in the Park, and also at the Park dam located across the river and south about two and one-half miles from the EV-1 site. Ms. Larsen has seen the Tolomato River some 30 to 40 times and intends to continue using the Tolomato River and the Guana River State Park in the future. On several occasions she and Petitioner Billie have visited "out-parcel" residents of the Palencia development and viewed wildlife and birds and walked the Marshall Creek area and the marsh edge viewing various bird species. In June 2003, after this litigation ensued, she, her niece and out-parcel resident Glenda Thomas walked a great deal of the subject site taking photographs of wildlife. In July 2003, Larsen and Billie participated in a fishing boat trip in the Marshall Creek area. In September 2003, she and Petitioner Billie kayaked on two consecutive days in the Tolomato River and in Marshall Creek, observing various wildlife such as endangered Wood Storks. Petitioner Larsen has been actively involved for the past 12 years as an advocate for the protection of indigenous or native American burial, village and midden sites on private and government property. Petitioner Billie is a spiritual leader or elder of the Independent Seminole Nation of Florida. In that capacity he sees it as his responsibility to protect animals, rivers, trees, water, air, rains, fish, and "all those things." The Independent Traditional Seminole Nation consists of approximately 200 persons, most of whom reside in Southern Florida. Mr. Billie lives in Okeechobee, Florida, several hours distant by automobile from the project site. About 10 to 30 years ago Billie visited the Eastside of Tolomato River, to visit the beach, the river and other areas in what is now Guana State Park. He visited the dike or dam area and walked along the river front in what is now the Park. He checked on burial sites along the Tolomato River in what is now Guana State Park. Billie first visited the Palencia property about five years ago and has been back a number of times. He has observed various forms of wildlife there and has visited out-parcel owners in the development area to ensure that they do not destroy any burial sites. Billie considers himself an environmental and indigenous rights advocate charged with maintaining the earth and resources for the next generation and preserving sacred and burial sites of indigenous people. He has in the past assisted governmental entities in preserving sacred indigenous sites and burial sites and has participated in the reburials of human remains and their belongings. Sometime ago Billie went on a boat ride on the Tolomato River. Since the filing of the Petition in this proceeding he has been in a kayak on the Tolomato River twice and once in a boat in the vicinity of Marshall Creek. He has also observed Marshall Creek from Shannon Road. He has been on the EV-1 site three times, all in conjunction with this litigation. His concerns with the EV-1 project in part stem from alleged impacts to an indigenous burial ground which he feels he identified, due to the presence of "a lot of shell." However, all of the shell was located in a previously constructed road bed off of the EV-1 project site. He testified that he has had no training with regard to identification of archeological sites, but that he can "feel" if a burial site is present. He believes that the EV-1 project will adversely affect everyone just like it adversely affects him. The Project The project is a 23.83-acre, single-family residential development and an associated stormwater system known as EV-1. It lies within the much larger Marshall Creek DRI in St. Johns County, Florida. The project is in and along wetlands associated with the Tolomato River to the east and wetlands associated with Marshall Creek, a tributary of the Tolomato River, to the north. The project consists of thirteen residential lots, two curb and gutter roadway segments with cul- de-sacs (Hickory Hill Court and North River Drive), paved driveways to individual lots, concrete and pvc stormwater pipes, two stormwater lift stations, perimeter berms, four stormwater run-off storage ponds, and an existing wet detention stormwater pond, which was previously permitted and located south and west of the EV-1 site. The project will also have on-site and off- site wetland mitigation areas. All portions of the EV-1 site are landward of the mean high waterline of the adjacent water bodies. The project plan calls for permanent impacts to 0.82 acres of wetlands. A total of 0.75 acres of that 0.82 acre wetlands is comprised of fill for four access crossings for roads and driveways and a total of 0.07 acres is for clearing in three areas for boardwalk construction. MCCDD proposes to preserve 6.47 acres of forested wetlands and 5.6 acres of saltmarsh wetlands, as well as to preserve 10.49 acres of upland buffers; to restore 0.05 acres of salt marsh and to create 0.09 acres of salt marsh wetlands as mitigation for any wetland impacts. The EV-1 mitigation plan is contiguous to and part of the overall Marshall Creek DRI mitigation plan. The Marshall Creek DRI is also known as "Palencia." The upland buffers are included to prevent human disturbance of the habitat value of off-site wetlands. The upland buffers on the EV-1 site range from 25 feet in areas that do not adjoin tidal marshes to 50 feet in areas which front the Tolomato River or Marshall Creek. Within the 25-foot buffers restrictions include (1) no trimming of vegetation and (2) no structures may be constructed. Within the 50-foot buffers the same restrictions apply, except that for 50 percent of the width of each lot, selected hand trimming may be done on branches 3 inches or less in diameter between 3 and 25 feet above the ground surface. The buffers and other preserved areas will be placed in conservation easements, ensuring that they will remain undisturbed. The Stormwater Management System The 23.83 acre drainage area of the EV-1 project is divided into two types: (1) "Developed Treated Area" consisting of the houses, a portion of each residential lot, all driveways, sidewalks and both cul-de-sac roadway sections, comprising 11.27 acres and (2) "Undeveloped Buffer Area" consisting of the undeveloped portion of the residential lots or 12.56 acres. The buffer areas are located between the developed treated area and the surrounding receiving water. The developed and undeveloped areas of each lot will be separated by earthen berms. The berms will be constructed within each lot and will be a minimum of one foot high above existing ground level at the landward ledge of the natural buffer area. When water falls on the house and the surrounding yard it will be directed through grading to the berm of the lot. Once it reaches the berm it will be collected in a series of inlets and pipes; and once collected within the pipe system it will be stored within the collection system and in several storage ponds. The developed areas storage systems consisting of the inlets, pipes and storage ponds are then connected to two stormwater lift stations that transfer the stored runoff to an existing wet detention pond, known as the EV-2 pond, which is located immediately adjacent to the EV-1 project area. There are two pumps and a wet well in each pump station. The combination of storage ponds, piping systems, the wet wells and the pump stations provide storage of the entire required treatment volume which is 61,000 cubic feet. Actually, the system has been designed to treat 65,000 cubic feet, somewhat in excess of the required treatment volume. Even when the pumps are not running these components of the system are able to completely contain the required treatment volume. The system has been designed to capture and treat in excess of 1.5 inches of runoff. This is the runoff that would be generated from a 5.3 inch rainfall event which is expected to occur less than once per year. This l.5 inches of runoff would generate the required 61,000 cubic feet of treatment volume. In order to ensure that the design volume is not exceeded, the applicant has limited the amount of impervious service on each lot to a maximum of 10,000 square feet. In order to ensure that the on-lot ponds in the collection system are hydrologically isolated, they have been designed to be either completely lined or constructed with "cut- off walls" placed in soils with either a hard pan layer or a layer of low permeability. This would prevent the ponds from de-watering nearby wetlands by removing any hydrologic communication between those wetlands and the ponds. Further, the liners and cut-off walls will isolate the pond from the effects of groundwater. This will ensure that the ponds can be maintained at the designed water level and that, therefore, the collection system will have the required storage volume. The EV-2 pond provides for wet detention treatment and was previously permitted and constructed as part of the EV-2 project. In order to accommodate the additional flow from the EV-1 site, the existing orifice will be plugged and an additional orifice will be installed. No changes will be made to the shape, depth, width, or normal water elevation of the EV- 2 pond. The EV-2 pond discharges into wetland systems that are directly connected to the intracoastal waterway. The EV-2 pond discharges into a wetland system and has a direct hydrologic connection to the intracoastal waterway north of the Matanzas inlet. The District rules do not contain a legal definition of the intracoastal waterway; however, for the purpose of determining whether a project discharge constitutes a direct discharge to the intracoastal waterway, the waterway includes more than the navigable channel of the intracoastal waterway. (Projects that have a direct discharge to the intracoastal waterway north of the Matanzas inlet are not required to demonstrate that the post-development peak rate of discharge does not exceed the pre-development peak rate of discharge, because this criterion was designed to evaluate the flooding impacts from rainfall events.) Flooding in water- bodies such as the intracoastal waterway is not governed by rainfall, but rather by tides and storm surges. The system design includes a clearing and erosion control plan and specific requirements to control erosion and sediment. The system design incorporates best management practices and other design features to prevent erosion and sedimentation, including (1) capturing turbidity; (2) sodding and grassing side slopes; (3) filtering water; (4) use of siltation fences during construction; (5) removing sediment; (6) early establishment of vegetative cover; and (7) keeping water velocities low, at less than 2 feet per second. The EV-2 pond is hydrologically isolated from groundwater influence because it was constructed with cut-off walls placed into a hard pan, impermeable layer. The EV-2 pond appears to be working properly, with no indication of adverse groundwater influence. The system has been designed to prevent adverse impacts to the hydro-period of remaining wetlands. The wetlands are hydrated through groundwater flow. The groundwater will still migrate to the wetlands as it did in the pre-development condition. The cut-off walls and liners in the ponds will prevent draw-down of groundwater from the wetlands. No septic tanks are planned for the project. The system is designed based on generally accepted engineering practices and should be able to function as designed. The pumps are three inch pumps that can handle solids up to two and one-half inches in diameter. Yard grates have one-inch slots that will prevent anything larger than one inch diameter from entering the system. Additionally, solids would accumulate in the sump areas. Finally, even if there were a power outage, the system can store the full treatment volume, without discharging, until power is restored. Flood Plain Consideration The 100-year flood elevation for the EV-1 site is 7.0 feet NGVD. The finish flood elevation of the houses will be 8.0 feet. The streets and roadways have been designed to be flood free in accordance with the St. Johns County criteria relating to flooding. The 10-year flood elevation for the EV-1 site is 4.1 feet NGVD. The project will result in filling 2,691 cubic feet of fill in areas below the 4.1-foot NGVD elevation which will include 2,456 cubic feet for "Hickory Hill" and 235 cubic feet for "North River." Thus, 2,691 feet of water will displaced in the 10-year floodplain of the Tolomato River as a result of the EV-1 project. This fill will result in a rise in water elevation in the Tolomato River of 0.0002 feet, which is less than the thickness of the single sheet of paper and is statistically insignificant. If other applicants were to impact the 10-year floodplain to the same extent, there would be no adverse cumulative impact in the flood storage capability of the floodplain. The Tolomato River/intracoastal waterway does not function as a floodway because it is more influenced by wind and tide than by stormwater runoff. Therefore, the project will not cause a net reduction in the flood conveyance capabilities of a floodway. Surface Water Each roadway and master driveway is provided with culverts to ensure redundant, multiple paths for water flow. For this reason, the wetland fill will not significantly impact the flow of water. These redundant connections also ensure that the water velocities are low, reducing the likelihood of erosion. In order to ensure that erosion will not occur, surface water velocities will be less than two feet per second and steep slopes (greater than two percent) will be sodded. The project does not impound water other than for temporary detention purposes. The project does not divert water to another hydrologic water basin or water course. Water Quality The Tolomato River and Marshall Creek, its tributary, are classified as Class II water bodies pursuant to Florida Administrative Code Rule 62-302.400. The designated use for Class II water is for shellfish harvesting. The Tolomato River is the receiving water for the EV-1 project. The Marshall Creek and Tolomato River Class II waters do not meet the applicable Class II water quality standards for total fecal coliform bacteria and for dissolved oxygen (DO). Water sampling indicates that sometimes the regulatory parameters for fecal coliform and for DO are exceeded in the natural occurring waters of Marshall Creek and the Tolomato River. The EV-2 pond has a large surface area and the top of the water column will be the most well-oxygenated due to contact with the atmosphere. Any water discharging from the pond will come from the surface of the pond which is the water containing the highest oxygen content in the entire water column of the pond. Thus, discharges from the EV-2 pond will not violate water quality standards for DO and the construction and operation of the project will actually improve the water quality in the receiving waters with respect to the dissolved oxygen parameter. Bacteria such as fecal coliform, generally have a life span of a few hours to a few days. The EV-2 pond will have a detention time, for water deposited therein, of approximately 190 days. This lengthy residence time will provide an ample opportunity for die-off of any coliform bacteria in the water column before the water is discharged from the pond. Additionally, there will be substantial dilution in the pond caused by the large volume of the pond. No new sources of coliform bacteria such as septic tanks are proposed as part of the EV-1 project. The fecal coliform discharge from the pond will thus be very low in value and will lead to a net improvement in the water quality of the receiving water-body. In fact, since the commencement of construction on the Marshall Creek DRI phases, a substantial and statistically significant decrease in fecal coliform levels has been observed in the main channel of Marshall Creek. The applicant has provided a detailed erosion control plan for the construction phase of the EV-1 project. The plan requires the use of best erosion and sediment control practices. In any location that will have slopes exceeding a two percent gradient, sodding will be provided adjacent to roadways or embankments, thereby preventing erosion. The EV-1 project design is based on generally accepted engineering practices and it will be able to function and operate as designed. The liner and cut-off wall components of the pond portions of the project are proven technology and are typical on such project sites which are characterized by high groundwater table and proximity to wetlands. The pump stations component of the project design is proven technology and is not unusual in such a design situation. The pump stations have been designed according to the stringent specifications provided for wastewater lift station pumps in sewer systems which operate with more frequency and duration of running times and therefore, more stressful service, than will be required for this system. Once constructed, the surface water management system will be operated and maintained by the applicant, which is a community development district. An easement for access in, on, over and upon the property, necessary for the purpose of access and maintenance of the EV-1 surface water management system, has been reserved to the community development district and will be a permanent covenant running with the title to the lots in the project area. The portions of the river and Marshall Creek adjacent to the project have been classified by the Department of Environmental Protection as conditionally restrictive for shellfish harvesting because of fecal coliform bacterial levels, which often exceed state water quality standards for that parameter. The boundary of the conditional shellfish harvesting area is the mean high water elevation. The EV-1 project site is located above the mean high water elevation. None of the wetland areas within the project site are able to support shellfish due to the characteristics of the wetlands and the lack of daily inundation of the high marsh portion of the wetlands. No shellfish have been observed on the EV-1 site. The EV-1 project will not result in a change in the classification of the conditionally restricted shellfish harvesting area. The project will not negatively affect Class II waters and the design of the system and the proposed erosion controls will prevent significant water quality harm to the immediate project area and adjacent areas. The discharge from the project will not change the salinity regime or temperatures prevailing in the project area and adjacent areas. Wetland Impact The 23.83-acre site contains five vegetative communities that include pine, flatwood, uplands, temperate hardwood uplands, wetland coniferous forest, wetland mixed forest and salt marsh. Several trail roads that were used for site access and forestry activities traverse the site. The project contains 0.82 acres of wetlands. The wetland communities are typical and are not considered unique. Most of the uplands on the main portion of the site exhibit the typical characteristics of a pine flatwood community. Some of the road-crossing areas within the EV-1 boundary are wetland pine flatwoods; these areas are dominated by pines and a canopy, but are still considered wetlands. There is also a very small area of high marsh vegetative community within the EV-1 boundary. Most of the site, both wetlands and uplands, has been logged in the past. The wetlands are functional; however, the prior logging operations have reduced the overall wildlife value of the site, including that of the wetlands, due to the absence of mature trees. All of the wetlands on the EV-1 site are hydrologically connected to and drain to the Marshall Creek and Tolomato River systems. The wetlands on the site are adjacent to an ecologically, important watershed. To the east of the EV-1 site, the Tolomato River and Marshall Creek are part of the Guana Marsh Aquatic Preserve. The Guana River State Park and Wildlife Management Area is also to the east of the EV-1 site. All the wetlands and uplands on the EV-1 site are located above the elevation of the mean high water line and therefore are outside the limit of the referenced Aquatic Preserve and Outstanding Florida Water (OFW). Direct Wetland Impact Within the site boundary there will be a total of 0.82 acres of wetland impacts in seven areas. MCCDD proposes to fill 0.75 acres of the wetlands to construct roads to provide access to the developed uplands and selectively clear 0.07 acres of the mixed forested wetlands to construct three pile-supported pedestrian boardwalks. The fill impacts include 0.29 acres within the mixed forested wetlands, 0.32 acres within the coniferous wetlands, and 0.14 acres within the high salt marsh area. The direct impacts to wetlands and other surface waters from the proposed project are located above the mean high water line of Marshall Creek and the Tolomato River. The first impact area is a 0.25-acre impact for a road crossing from the EV-2 parcel on to the EV-1 site. 0.14 acres of the 0.25 acres of impact will be to an upper salt marsh community and 0.11 acres of impact is to a mixed forested wetland. This impact is positioned to the south of an existing trail road. The trail road has culverts beneath it so there has been no alteration to the hydrology of the wetland as a result of the trail road. This area contains black needle rush and spartina (smooth cord grass). The black needle rush portion of this area may provide some foraging for Marsh Wrens, Clapper Rails and mammals such as raccoons and marsh rabbits. The fresh-water forested portion of this area, which contains red maple and sweet gum, may provide foraging and roosting and may also be used by amphibians and song birds. Wading birds would not likely use this area because the needle rush is very sharp- pointed and high and will not provide an opportunity for these types of birds to forge and move down into the substrate to feed. The wading birds also would be able to flush very quickly in this area and their predators would likely hide in this area. The second impact area is a 0.25-acre impact to a pine flatwoods wetland community and will be used for a road crossing. It is in a saturated condition most of the time. The species that utilize this area are typically marsh rabbits, possums, and raccoons. The third impact area is a 0.18-acre impact to a mixed forested wetlands for a roadway crossing on the south end of the project. The impact is positioned within the area of an existing trail road. The trail road has culverts beneath it, so there will be no alteration to the hydrology of the wetland as a result of the road. This area is characterized by red maple, sweet gum and some cabbage palm. There will be marsh rabbits, raccoons, possums, some frogs, probably southern leopard frogs and green frogs in this area. Wading birds would not likely use this area due to the same reasons mentioned above. The fourth impact area is a 0.07-acre impact for a driveway for access to Lot two. This area is a mixed forested wetland area, having similar wildlife species as impact areas three and seven. The fifth impact area is a 0.02-acre clearing impact for a small residential boardwalk for the owner of Lot six to access the uplands in the back of the lot. The proposed boardwalk will be completely pile-supported and will be constructed five feet above the existing grade. This area is a mixed forested wetland area, having similar species as impact areas three and seven. Wading birds would also not likely use this area for the same reasons delineated above as to the other areas. The sixth impact area is also a 0.02-acre clearing impact similar to impact area five. The proposed board walk would be located on Lot five and be completely pile-supported five feet above the existing grade. This area is a mixed forested wetland area similar to impact area five. Deer will also use this area as well as the rest of the EV-1 site. Wading birds will probably not use this area due to the same reasons mentioned above. The seventh impact area is a 0.03-acre impact for two sections of a public boardwalk (previously permitted) for the Palencia Development. The proposed boardwalk will be completely pile-supported, five feet above the existing grade. This is a pine-dominated area with similar wildlife species to impact area two. All these wetlands are moderate quality wetlands. The peripheral edges of the wetlands will be saturated during most of the year. Some of the interior areas that extend outside the EV-1 site will be seasonally inundated. Secondary Impacts The applicant is addressing secondary impacts by proposing 8.13 acres of 25-foot wide (or greater) upland buffers and by replacing culverts at the roadway crossings to allow for wildlife crossing and to maintain a hydrologic connection. Mitigation by wetland preservation is proposed for those areas that cannot accommodate upland buffers (i.e., the proposed impact areas). Under the first part of the secondary impact test MCCDD must provide reasonably assurance that the secondary impact from construction, alteration and intended or reasonably expected uses of the project will not adversely affect the functions of adjacent wetlands or other surface waters. With the exception of wetland areas adjacent to the road crossings, MCCDD proposes to place upland buffers around the wetlands where those potential secondary impacts could occur. The buffers are primarily pine flatwoods (pine dominated with some hardwood). These buffers encompass more area than the lots on the EV-1 site. The upland buffers would extend around the perimeter of the project and would be a minimum of 25 feet and a maximum of 50 feet wide, with some areas actually exceeding 50 feet in width. The buffers along the Marshall Creek interface and the Tolomato River interface will be 50 feet and the buffers that do not front the tidal marshes (in effect along the interior) will be 25 feet. These upland buffers will be protected with a conservation easement. No activities, including trimming or placement of structures are allowed to occur within the 25-foot upland buffers. These restrictions ensure that an adequate buffer will remain between the wetlands and the developed portion of the property to address secondary impacts. The restriction placed on the 25-foot buffers is adequate to prevent adverse secondary impacts to the habitat value of the off-site wetlands. No types of structures are permitted within the 50- foot buffers. However, hand-trimming will be allowed within half of that length along the lot interface of the wetland. Within that 50 percent area, trimming below three-feet or above 25-feet is prohibited. Trimming of branches that are three inches or less in diameter is also prohibited. Lot owners will be permitted to remove dead material from the trimming area. The 50-foot buffers will prevent secondary impacts because there will still be a three-foot high scrub area and the 50 foot distance provides a good separation between the marsh which will prevent the wading birds, the species of primary concern here, from flushing (being frightened away). None of the wetland area adjacent to uplands are used by listed species for nesting, denning, or critically important feeding habitat. Species observed in the vicinity of Marshall Creek or the adjacent Tolomato River wetland aquatic system include eagle, least tern, brown pelican, and wading birds such as the woodstork, tri-color blue heron, and snowy egrets. Wading Birds will typically nest over open water or on a island surrounded by water. Given the buffers proposed by MCCDD, the ability of listed species to forage in the adjacent wetlands will not be affected by upland activities on the EV-1 site. The adjacent wetlands are not used for denning by listed species. Under the second part of the secondary impact test, MCCDD must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling nesting or denning by these species. There are no areas on the EV-1 site that are suitable for nesting or denning by threatened or endangered species and no areas on the EV-1 site that are suitable for nesting or denning by aquatic and wetland dependent species. After conducting on-site reviews of the area, contacting the U.S. Fish and Wildlife Service and the Florida Wildlife Commission and reviewing literature and maps, Mr. Esser established that the aquatic and wetland listed species are not nesting or denning in the project area. There is a nest located on uplands on the first island east of the project site, which was observed on October 29, 2002. The nest has been monitored informally some ten times by the applicants, consultants and several times by personnel of the District. The nest was last inspected on October 14, 2003. No feathers were observed in the nest at that time. It is not currently being used and no activity in it has been observed. Based on the absence of fish bones and based upon the size of the sticks used in the nest (one-half inch) and the configuration of the tree (crotch of the tree steeply angled) it is very unlikely that the nest is that of an American Bald Eagle. It is more likely the nest of a red-tailed hawk. Historical and Archeological Resources Under the third part of the secondary impact test and as part of the public interest test, any other relevant activities that are very closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical or archeological resources must be considered. When making a determination with regard to this part of the secondary impact test the District is required by rule to consult the Division of Historical and Archeological Resources (the Division) within the Department of State. The District received information from the Division and from the applicant regarding the classification of significant historical and archeological resources. In response to the District's consultation with the Division, the Division indicated that there would be no adverse impacts from this project to significant historical or archeological resources. As part of the Marshall Creek DRI application, a Phase I archeological survey was conducted for the entire area of the DRI, including the EV-1 project area. The Phase I survey of the Marshall Creek DRI area revealed nine archeological sites. At the end of the Phase I survey, five of the nine sites were recommended to be potentially eligible for the National Register of Historical places and additional work was recommended to be done on those five sites, according to Dr. Ann Stokes, the archeologist who performed the Phase I survey and other archeological investigation relevant to this proceeding. One of the sites considered eligible for listing on the National Register of Historic Places was site 8SJ3146. Site 8SJ3146 was the only site found in the area near the EV-1 project site. The majority of the EV-1 project site lies to the east of this archeological site. The entry road leading into EV-1 crosses the very southeastern edge or corner of the 8SJ3146 archeological site. Shovel tests for archeological remains or artifacts were conducted across the remainder of the EV-1 property and were negative. Ceramic shards were found in one of the shovel tests (shovel test number 380), but it was determined by Dr. Stokes that that ceramic material (pottery) had been within some type of fill that was brought into the site and the ceramics were not artifacts native to that site. Therefore, it was not considered a site or an occurrence. There was no evidence of any human remains in any of the shovel test units and there was nothing to lead Dr. Stokes to believe that there were any individuals buried in that area. (EV-1) Because a determination was made that 8SJ3146 was a potentially significant site, a "Phase II assessment" was conducted for the site. During the Phase II assessment five tests units were established on the site to recover additional information about the site and assess its significance. The test unit locations (excavations) were chosen either to be next to an area where there were a lot of artifacts recovered or where an interesting type of artifact had been recovered. Test units one through four contained very few or no artifacts. Test unit five however, yielded faunal bones (animal remains), pottery and a post mold (post molds are evidence of support posts for ancient structures). After the Phase II assessment was conducted, site 8SJ3146 was considered to be significant, but the only part of the site that had any of the data classes (artifact related) that made it a significant site was in the area of the very southwest portion of 8SJ3146, surrounding test unit five. Dr. Stokes recommended that the area surrounding test unit five in the very southwestern portion of 8SJ3146 be preserved and that the remainder of the site would not require any preservation because the preservation of the southwestern portion of the site was the only preservation area which would be significant archeologically and its preservation would be adequate mitigation. That southwestern portion of the site, surrounding unit five, is not on the EV-1 site. Dr. Stokes recommended to the applicant and to the Division that a cultural resource management plan be adopted for the site and such a plan was implemented. A Phase I cultural resource survey was also conducted on the reminder of the EV-1 site, not lying within the boundaries of 8SJ3146. That survey involved shovel tests across the area of the EV-1 project area and in the course of which no evidence of archeological sites was found. Those investigations were also reported to the Division in accordance with law. The preservation plan for site 8SJ3146, as to preservation of the southwest corner, is now called an archeological park. That designation was shown to be adequate mitigation for this site. The preservation area is twice as large as the area originally recommended by Dr. Stokes to be preserved; test unit five is within that preservation area. Dr. Stokes's testimony and evidence are not refuted by any persuasive countervailing evidence and are accepted. They demonstrate that the construction and operation of the EV-1 project will not adversely affect any significant archeological or historical resources. This is because any effects to site 8SJ3146 are mitigated by the adoption of the preservation plan preserving the southwest portion of that archeological site. Under the fourth part of the secondary impact test, the applicant must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or result in water quality violations. MCCDD has demonstrated that any future phase or expansion of the project can be designed in accordance with the District's rule criteria. Mitigation of Adverse Impacts The permit applicant has proposed mitigation to offset adverse impacts to wetland functions as part of its ERP application. The proposed mitigation consists of 0.05 acres of wetlands restoration, 12.07 acres of wetland preservation (including 6.47 acres of mixed forested wetlands and 5.60 acres of salt marsh), 10.49 acres of upland preservation (which includes buffers and additional upland areas) and 0.09 acres of salt marsh creation. The mitigation for the EV-1 project will occur on-site and off-site; 10.49 acres of upland buffer are being committed to the project. The upland buffers are on-site; the rest of the mitigation is off-site and is adjacent to EV-1. There will be 5.6 acres of salt marsh preservation and 6.47 acres of forested wetland preservation. All of the mitigation is on land lying above the mean high water elevation and is outside the aquatic preserve and the OFW. The salt marsh restoration will occur by taking out an existing trail road that is in the northeast section of the site and the salt marsh creation site is proposed at the tip of lot number one. The preservation of wetlands provides mitigation value because it provides perpetual protection, ensuring that development will not occur in those areas, as well as preventing agricultural activities, logging and other relatively unregulated activities from occurring there. This will allow the conserved lands to mature and to provide more forage and habitat for wildlife that would use those areas. The functions that are currently being provided by the wetlands to be impacted will be replaced and exceeded in function by the proposed mitigation. Additionally, MCCDD did not propose any impacts on site that could not be offset by mitigation. The EV-1 project will not adversely affect the abundance and diversity and habitat of fish and wildlife. The mitigation for the proposed project is also located within the same drainage basin as the area of wetlands to be adversely impacted. MCCDD has proposed mitigation that implements all or part of a plan of regional ecological value and the proposed mitigation will provide greater long-term ecological value than the wetlands to be impacted. The plan of regional ecological value consists of the land identified in the DRI as well as the lands that have been permitted as mitigation up to date and the proposed EV-1 mitigation lands. The plan includes lands that have been added to the plan since the approval of the Marshall Creek DRI. The mitigation proposed for the impact to wetlands and other surface waters associated with the project is contiguous with the Guana River Marsh Aquatic Preserve, with previously preserved wetlands and upland islands and with Marshall Creek. When implemented the mitigation plan will create wetlands and preserve wetlands and uplands with functions similar to the impacted wetlands and those wetlands will be connected through wetland and upland preservation to the Guana River Marsh Aquatic Preserve. Corridors and preservation areas important for wildlife movement throughout the whole Palencia site have been set aside. As development progresses towards the eastern portion of the Marshall Creek site, it is important to add preservation areas to the whole larger plan. The lands proposed to be added as mitigation for the EV-1 project will add to the value of the previously preserved lands from other phases of the DRI and development by helping to maintain travel corridors and forage areas for wildlife, to maintain water quality in the adjacent marsh and to maintain fish and wildlife benefits of the aquatic preserve. MCCDD has provided more mitigation than is typically required by the District for such types of impact. The upland preservation ratios for example range from about three-to-one to twenty-to-one. MCCDD is providing upland preservation at a near twenty-to-one ratio. Salt marsh preservation ratios are typically required to be sixty to one and MCCDD is providing mitigation at twice that ratio. Concerning fresh-water forested preservation, the District usually requires mitigation at a twenty to twenty-five-to-one ratio and the applicant is proposing a thirty to one preservation ratio. Additional mitigation will be provided beyond what is required to mitigate the adverse impacts for each type of impact anticipated. Although proposing more mitigation may in some instances not provide greater long-term ecological value than the wetlands to be adversely affected, the mitigation proposed by MCCDD will provide greater long-term ecological value. The Petitioners contend that a chance in circumstances has occurred which would adversely affect the mitigation plan as a plan of regional ecological value. They claim its efficacy will be reduced because of a proposed development to a tract of land known as the Ball Tract which would, in the Petitioners' view, sever connection between the Marshall Creek site and the 22,000-acre Cummer Trust Tract also known as "Twelve mile swamp." Although a permit application has been submitted to the Florida Wildlife Commission for the Ball Tract property, located northwest of Marshall Creek and across U.S. Highway 1 from Marshall Creek and the EV-1 site, no permit has been issued by the District for that project. Even if there were impacts proposed to wetlands and other surface waters as part of any development on the Ball Tract, mitigation would still be required for those impacts, so any opinion about whether the connection would be severed between the project site, the Marshall Creek site and the Cummer Trust Tract is speculative. The Petitioners also sought to establish changed circumstances in terms of reduced effectiveness of the plan as a plan of regional ecological value because, in their opinion, Map H, the master plan, in the Marshall Creek development order plan, shows the EV-1 project area as being located in a preservation area. However, Map H of the Marshall Creek DRI actually shows the designation VP for "Village Parcel" on the EV-1 site and shows adjacent wetland preservation areas. Although Map H shows a preservation area adjacent to the EV-1 parcel, the Petitioners infer that EV-1 was not proposed for development. That is not the case. Map H contains a note that the preservation areas (as opposed to acreages) are shown as generalized areas and are subject to final design, road crossings and final wetland surveys before they were exactly delineated. Therefore, in the DRI plan, the EV-1 area was not actually designated a preservation area. Surface Water Diversion and Wetland Draw-Down Water will not be diverted to another basin or water course as a result of the EV-1 project. Water captured by the treatment system and discharged from the EV-2 pond, will flow back through wetlands that meander through the project site. The EV-1 project will not result in significant diversion of surface waters. The project will also not result in a draw-down of groundwater that will extend into adjacent wetlands. Each of the storage ponds on lots 1, 3, and 7 and between lots 9 and 10 has been designed to include cut-off walls around the perimeter of the ponds and the storage pond on lot 7 will be completely lined. The cut-off walls will be installed in a soil strata that has very low permeability. The cut-off walls and liner will restrict the movement of groundwater from the wetlands into the storage ponds. As a result, the zone of influence of each storage pond will not extend far enough to intercept with the adjacent wetlands. The Public Interest Test The public interest test has seven criteria, with each criteria having equal weight. The public interest test applies to the parts of the project that are in, on or over wetlands, and those parts must not be contrary to the public interest unless they are located in, on or over an OFW or may significantly degrade an OFW; then the project must be clearly in the public interest. It is a balancing test. The EV-1 project, however, is not located in an OFW. The Public Health Safety and Welfare Criteria The parts of the project located in, on and over wetlands will not adversely affect the public health, safety or welfare. These parts of the project will not cause any adverse impact on flood stages or flood plains and discharges from the system will not harm shell fishing waters. This factor is thus considered neutral. Conservation of Fish, Wildlife or Their Habitat The mitigation from this project will offset any adverse impacts to fish wildlife or their habitat. Therefore this factor is considered neutral as well. Fishing, Recreational Value and Marine Productivity There is no recreational activity or fish nursery areas within the project limits and the project will not change the temperature of the aquatic regime. None of the impacts associated with the EV-1 site are within the mean high water line of the marine aquatic regime. The activities are not going to interact with the tidal regime and they cause negligible impacts. Concerning marine productivity, the wetland impacts are landward of the marine system; therefore, impact on marine productivity is not applicable. Thus this factor is considered neutral. Temporary or Permanent Nature The project will be of a permanent nature. Even though the project is permanent, this factor is considered neutral because the mitigation proposed will offset any permanent adverse impact. Navigation and the Flow of Water The parts of the project located in, on and over wetlands will not adversely affect navigation. These parts will also not impound or divert water and therefore will not adversely affect the flow of water. The project has been designed to minimize and reduce erosion. Best management practices will be implemented, and therefore, the project will not cause harmful erosion. Thus this factor is also considered neutral. Current Condition and Relative Value of Functions Being Performed The current condition and relative value of the functions being performed by the areas affected by the proposed activity, wetlands areas, will not be harmed. This is because any adverse impacts to the wetlands involved will be more than offset by the mitigation proposed to be effected. Therefore, there may well be a net gain in the relative value and functions being performed by the natural areas and the mitigation areas combined. Thus this factor is neutral. Works of the District The proposed project will not cause any adverse impact to a work of the District established in accordance with Section 373.086, Florida Statutes. Shoaling The construction and operation of the proposed project to the extent it is located in, on or over wetlands or other surface waters will not cause any harmful shoaling.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the St. Johns River Water Management District granting MCCDD's application for an individual environmental resource permit with the conditions set forth in the technical staff report dated September 24, 2003, in evidence as St. John's River Water Management District's Exhibit 3. DONE AND ENTERED this 9th day of February, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 9th day of February, 2004. COPIES FURNISHED: Deborah J. Andrews, Esquire 11 North Roscoe Boulevard Ponte Vedra Beach, Florida 32082 Veronika Thiebach, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Marcia Parker Tjoflat, Esquire Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202-4327 Stephen D. Busey, Esquire Allan E. Wulbern, Esquire Smith, Hulsey & Busey 225 Water Street, Suite 1800 Jacksonville, Florida 32202 Kirby Green, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429
The Issue The issue is whether an Environmental Resource Permit should be issued to KGB Lake Howell, LLC, authorizing the construction of a surface water management system to serve an apartment complex known as the Estates at Lake Howell in the City of Casselberry, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this proceeding, Respondent, St. Johns River Water Management District (District), proposes to issue an Environmental Resource Permit to Respondent, KGB Lake Howell, LLC (Applicant), authorizing the construction of a stormwater management system to serve a 240-unit apartment complex known as the Estates of Lake Howell. The project will be located on an undeveloped tract of land in the City of Casselberry (City), Seminole County, Florida, just north of the Orange County line. It will include ten three-story buildings, parking, clubhouse/ administration building, amenity complex, and wet detention pond. The project also incorporates a 3.62-acre stormwater pond, now owned and used by Seminole County (County), lying east of Lake Ann Lane across from the project site, which was included in the overall acreage calculations for the purpose of increasing apartment density on the site. The Applicant has authorization from the County to apply for the permit incorporating that tract of land. The pond will continue to function as a stormwater facility for the County and will not accommodate stormwater from the project site. The project site consists of 38.9 acres located on the north side of Howell Branch Road, east of State Road 436 (also known as Semoran Boulevard), and west of Lake Ann Lane in the City. The site is currently undeveloped and includes an abandoned orange grove and upland pine flatwoods community, which make up approximately 14.6 acres, while the remaining 24.3 acres is a mixed forested wetland system. The property is now owned by the Harold Kasik Living Trust (Kasik property), which has a contract for purchase with the Applicant. The Kasik property is in the shape of a rectangle, 648 feet by 2,530 feet, with its long sides running north- south. It is bordered on the north and east by single-family residential and vacant land, to the south by commercial development, and to the west by high-density residential and commercial development. The property has a high elevation of approximately 83 feet on its southeastern corner and falls to the north/northeast, where the edge of the wetland system is at an elevation of 63 or 64 feet. The major development constraint on the site is the large wetland tract on the northern portion of the property. In order to minimize proposed impacts to the wetlands, the Applicant proposed the transfer of the development entitlements from the County land to benefit the Applicant's property. More specifically, the Applicant will acquire the County property, the Applicant will simultaneously grant a perpetual drainage easement over the property to the County, the Applicant will maintain the landscaping of the property in perpetuity, the Applicant will convey around five acres of wetlands on the northern end of the Kasik property to the County in fee simple, and the City will allow the transfer of development rights from the property. The project will adversely impact 0.99 acres of low- quality wetlands, of which 0.72 acres are to be dredged and 0.27 acres are to be filled to provide the fencing around the wet detention facility. To offset this impact, the Applicant proposes to preserve 17.8 acres of forested wetlands, plus 1.2 acres of forested uplands, or a mitigation ratio of 18:1. The District's guidelines for preservation mitigation applicable to this project are 10:1 to 60:1 for wetland impacts and 3:1 to 20:1 for upland impacts; thus, the mitigation plan falls within these guidelines. Under current conditions, stormwater runoff from the project site sheet flows into the on-site wetland and ultimately Lake Howell (the Lake), a Class III water body which meets all applicable water quality standards and is not an Outstanding Florida Water. After development occurs, stormwater from the developed portions of the property will be conveyed to a wet detention pond for required water quality treatment and peak discharge rate attenuation. After treatment in the detention pond, the water will discharge to the on-site wetland, as it does now, and eventually will be conveyed into the Lake. Off-site flows will continue to be conveyed into the on-site wetland. The wet detention pond, which has a minimum depth of twelve feet and a permanent pool of water with a mean depth of two to eight feet, has been designed to accommodate a 25-year, 24-hour storm. Post-development discharge will be less than pre-development, and the outfall structure has been designed to avoid channelization in the wetlands after the point of discharge. Since at least the late 1940's, Petitioner, Shirley Haynes, or her relatives, have owned, or resided on, a multi-acre tract of land just north of the project site at 2764 Lake Howell Lane. She has substantial frontage on the south side of the Lake. The southern portion of her property, which are wetlands, adjoins the northern boundary of the project site. For the past three years, Petitioner, Egerton van den Berg, has resided on a ten-acre tract of land at 1245 Howell Point, which is northeast of the project site. He has approximately 235 feet of frontage on the south side of the Lake. As argued in their Proposed Recommended Order, Petitioners generally contend that the application is "materially deficient" in several respects in violation of Rule 40C-4.101; that the Applicant has failed to satisfy Rule 40C-4.301(1)(c) and (d), which in turn constitutes a failure to meet the requirements of Rule 40C-4.302(1)(a)-(c); that the Applicant failed to satisfy the criteria in Sections 12.2.3(a)-(f), 12.2.1, 12.2.1.1, 12.2.1.3, 12.2.2.3(a)-(e), 12.2.2.4(a) and (b), 12.3.2.2(c), and 12.3.8(a) of the Applicant's Handbook: Management and Storage of Surface Waters (Applicant's Handbook); that the District did not adequately consider the cumulative impacts of the project as required by Section 373.414(8)(a), Florida Statutes; that a low flow analysis of the Lake was not performed, as required by Rule 40C-8.011(5); that the Applicant did not submit detailed mitigation plans as required by Section 12.3.3.2 of the Applicant's Handbook; that the 18:1 ratio for mitigation proposed by the Applicant is inappropriate; and that the District should not approve the density of the apartments established by the City. These concerns, to the extent they have been identified as issues in the parties' Pre-Hearing Stipulation, are addressed in the findings below. Where contentions have been raised by Petitioners, such as the placement of the detention pond over a depressional area, and they have not been argued in the Proposed Recommended Order, they have been deemed to be abandoned. Conditions for issuance of permits Rule 40C-4.301(1)(a)-(k), Florida Administrative Code, specifies eleven substantive requirements for which reasonable assurance must be given in order for a standard permit to be issued. Subsection (3) of the same Rule provides that the standards and criteria contained in the Applicant's Handbook shall determine whether the foregoing reasonable assurances have been given. Additional conditions for the issuance of a permit are found in Rule 40C-4.302(1) when the project, or any part of it, is located in, on, or over wetlands or other surface waters. Therefore, because a part of the Applicant's system will be located in wetlands, the Applicant must also give reasonable assurance that the project will not be contrary to the public interest, and that it will not cause unacceptable cumulative impacts upon the wetlands or surface waters. a. Rule 40C-4.301 Paragraphs (a)-(c) of the Rule require that an applicant provide reasonable assurance that the project will not cause adverse water quantity impacts to receiving waters and adjacent lands, adverse flooding to on-site or off-site property, or adverse impacts to existing surface water storage and conveyance capabilities. If a system meets the requirements of Section 10.2.1(a) through (d) of the Applicant's Handbook, there is a presumption that the system complies with the requirements of Paragraphs (a) through (c). This presumption has been met since the evidence supports a finding that the post- development peak rate of discharge will be lower than the pre- development peak rate of discharge for a 24-hour, 25-year storm event. Therefore, the Applicant's system meets the requirements of these Paragraphs. Paragraph (d) of the Rule requires that an applicant give reasonable assurance that the project "will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." To satisfy this requirement, an applicant must also demonstrate compliance with the two-prong test in Sections 12.2.2 and 12.2.2.4 of the Applicant's Handbook. Section 12.2.2 requires that an applicant provide reasonable assurance that a regulated activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, and habitat of fish, wildlife, and listed species. In its proposal, the Applicant proposes to fill a total of 0.99 acres of wetlands. Since these impacts will eliminate the ability of the filled part of the on-site wetland to provide functions to fish and wildlife, the filling will cause adverse impacts. Under these circumstances, Section 12.2.1.1 requires that the Applicant either implement practicable design modifications to reduce or eliminate these adverse impacts or meet one of the exceptions under Section 12.2.1.2. Under Section 12.2.1.1, a proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered practicable. The Applicant’s design for the proposed project went through a number of iterations prior to submittal to the District to reduce adverse impacts to the wetlands. During the permitting process, the District requested that the Applicant consider a number of other suggestions to reduce or eliminate the adverse impacts to wetlands such as adding a fourth floor to the apartment buildings to eliminate the need for one apartment building, building a parking garage for the tenants, and eliminating the tennis and volleyball courts. Because the Applicant provided detailed reasons why none of those suggestions were practicable, it was not required to implement any of those design modifications. In addition, the Applicant’s decision not to include a littoral zone around the stormwater pond did not increase the amount of wetland impacts as that engineering decision resulted in a stormwater pond that was simply deeper and not wider. Therefore, the Applicant has met the requirement to reduce or eliminate adverse wetland impacts. Section 12.2.1.1 only requires an elimination and reduction analysis when: (1) a proposed system will result in adverse impacts to wetland functions and other surface water functions so that it does not meet the requirements of Sections 12.2.2 through 12.2.3.7, or (2) neither one of the two exceptions within Section 12.2.1.2 applies. In determining whether one of the two exceptions in Section 12.2.1.2 applies, the District must evaluate the long- term ecological value of the mitigation proposed by the Applicant. If the mitigation is not adequate to offset the adverse impacts of the proposed system, then it is unlikely either exception in Section 12.2.1.2 will apply. As noted above, the Applicant’s proposed dredging and filling of the southern edge of the wetlands on the project site will eliminate the ability of that wetland area to provide functions to fish and wildlife. However, the Applicant’s mitigation plan of placing 17.8 acres of wetlands and 1.2 acres of uplands under a conservation easement to preserve that property in its natural state in perpetuity will fully replace the types of functions that the part of the wetlands proposed to be impacted provides to fish and wildlife. The mitigation plan will also offset the adverse impacts that this project will have on the value and functions provided to fish and wildlife by the impacted part of the wetlands. In this case, the first exception under Section 12.2.1.2(a) applies as it meets that Section's two requirements: the ecological value of the functions provided by the area of wetland to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value than the area or wetland to be adversely affected. Also, the quality of the wetland to be impacted is low. All of the proposed impacts will occur in the area of the wetland that was historically disturbed and in which nuisance and exotic species are prevalent. Due to nuisance and exotic vegetation, the ecological value provided by that area to wildlife is low. The mitigation for the proposed project will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted because the proposed mitigation will preserve eighteen times more wetlands that are of higher quality and provide greater value than the wetland area to be impacted. The type of wetland to be preserved, a mixed forested wetland containing hardwoods, is rare for the area. Although the mitigation plan will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted, the Applicant did not meet the second exception in the elimination and reduction rule under Section 12.2.1.2(b) because the wetlands to be preserved are not regionally significant. In addition to meeting the elimination and reduction rule through implementation of practicable design modifications, the Applicant also satisfied the same rule by meeting the first exception found in Section 12.2.1.2(a). Thus, the Applicant has satisfied Section 12.2.2, which is the first prong of the test to determine compliance with Paragraph (d). The second prong of the test to determine whether Paragraph (d) of the Rule has been satisfied is found in Section 12.2.2.4. That Section requires that an applicant give reasonable assurance that the activity will not change the hydroperiod of a wetland so as to affect wetland functions. For the following reasons, that prong of the test has been satisfied. Since the wetlands are primarily groundwater-influenced, the construction of the stormwater pond between the project and the wetlands will not adversely affect the wetlands. As the soils surrounding the pond are very porous with a high infiltration and percolation rate, water from the stormwater pond will still reach the wetlands through lateral seepage. Further, the Applicant will install an energy dissipating device on the outfall spout at the point of discharge so that water will be spread out from the stormwater pond as it discharges into the receiving wetlands. As noted earlier, this will prevent an adverse channelization effect. Finally, stormwater runoff from the surrounding basins that currently discharge into the wetlands will not be affected by the construction of the stormwater system. That runoff will continue to flow into the wetlands on the project site. Because the Applicant has satisfied Sections 12.2.2 and 12.2.2.4, Paragraph (d) of the Rule has been met. Paragraph (e) of the Rule generally requires that an applicant provide reasonable assurance that a project will not adversely affect the quality of receiving waters. Here, the Applicant has provided such assurance. This is because the system has been designed in accordance with all relevant District criteria. Also, the Applicant has proposed to revise Permit Condition 26 as follows: Condition 26. This permit authorizes construction and operation of a surface water management system as shown on the plans received by the District on June 14, 2001, and as amended by plan sheet C4 (Sheet 07 of 207) received by the District on January 23, 2002. In view of this revision, the Applicant's wet detention system complies with all of the design criteria contained in Rule 40C-42.026(4). Under Rule 40C-42.023(2)(a), compliance with the design criteria contained in Rule 40C-42.026 creates a presumption that state water quality standards, including those for Outstanding Florida Waters, will be met. This presumption has not been rebutted; therefore, the requirements of Paragraph (e) of the Rule have been satisfied. Further, Sections 12.2.4.1 and 12.2.4.2 state, in part, that reasonable assurance regarding water quality must be provided both for the short term and the long term, addressing the proposed construction, alteration, operation, maintenance, removal, and abandonment of the system. The Applicant has provided reasonable assurance that this requirement is met through the design of its surface water management system, its long-term maintenance plan for the system, and the long and short-term erosion and turbidity control measures it proposes. If issued, the permit will require that the surface water management system be constructed and operated in accordance with the plans approved by the District. The permit will also require that the proposed erosion and turbidity control measures be implemented. Section 12.2.4.5 does not apply because there are no exceedances of any water quality standards at the proposed receiving water. Also, Sections 12.2.4.3 and 12.2.4.4 do not apply because the Applicant has not proposed any docking facilities or temporary mixing zones. Paragraph (f) of the Rule requires that an applicant not cause adverse secondary impacts to the water resources. Compliance with this requirement is determined by applying the four-part test in Section 12.2.7(a) through (d). As to Section 12.2.7(a), there are no secondary impacts from construction, alteration, and intended or reasonably expected uses of the proposed system that will cause water quality violations or adverse impacts to the wetland functions. The Applicant chose not to provide buffers abutting the wetlands but rather chose measures other than buffers to meet this requirement. The Applicant has provided reasonable assurance that secondary impacts will not occur by placing the stormwater pond between the planned project and the wetlands, so that the pond itself will serve as a buffer by shielding the wetland from the lighting and noise of the project, and by acting as a barrier to keep domestic animals out of the wetlands. In addition, the Applicant increased the amount of property to be preserved as mitigation by adding 2.97 acres of wetlands and 1.2 acres of uplands to the mitigation plan to mitigate for any remaining secondary impacts. Accordingly, the first part of the secondary impacts test in Section 12.2.7(a) is satisfied. As to Section 12.2.7(b), because there is no evidence that any aquatic or wetland-dependent listed animal species use uplands for existing nesting or denning adjacent to the project, the second part of the test has been met. No adverse secondary impacts will occur under the third part of the test in Section 12.2.7(c) because the proposed project will not cause impacts to significant historical or archaeological resources. Finally, adverse secondary impacts as proscribed by Section 12.2.7(d) will not occur because no evidence was presented that there would be additional phases or expansion of the proposed system or that there are any onsite or offsite activities that are closely or causally linked to the proposed system. Therefore, the proposed project satisfies Paragraph (f) of the Rule. Paragraph (g) of the Rule requires that an applicant provide reasonable assurance that a project will not adversely impact the maintenance of surface or ground water levels or surface water flows established in Chapter 40C-8. Minimum (but not maximum) surface water levels have been established for the Lake pursuant to Chapter 40C-8 for the basin in which the project is located. The project will not cause a decrease of water to, or cause a new withdrawal of water from, the Lake. Therefore, the project satisfies this requirement. Finally, Petitioners have acknowledged in their Proposed Recommended Order that the Applicant has given reasonable assurance that the requirements of Paragraphs (h), (i), (j), and (k) have been met. The parties have also stipulated that the receiving water (Lake Howell) meets all Class III water quality standards. Therefore, the project satisfies the requirements of Subsection 40C-4.301(2). Rule 40C-4.302 - Public Interest Test Under Rule 40C-4.302(1)(a)1.-7., an applicant must provide reasonable assurance that the parts of its surface water management system located in, on, or over wetlands are not contrary to the public interest. Similar requirements are found in Section 12.2.3. The Applicant has provided reasonable assurance that the parts of the project that are located in, on, or over wetlands (mainly the detention pond and fill) are not contrary to the public interest, because the evidence showed that all seven of the public interest factors to be balanced are neutral. Because the proposed permanent mitigation will offset the project’s adverse impacts to wetlands, no adverse effects to the conservation of fish and wildlife due to the project’s permanent nature will occur. The evidence also showed that best management practices and erosion control measures will ensure that the project will not result in harmful erosion or shoaling. Further, it was demonstrated that the project will not adversely affect the flow of water, navigation, significant historical or archaeological resources, recreational or fishing values, marine productivity, or the public health, safety, welfare or property of others. Finally, the evidence showed that the project’s design, including permanent mitigation, will maintain the current condition and relative value of functions performed by parts of the wetland proposed to be impacted. Therefore, the project meets the public interest criteria found in Rule 40C-4.302(1)(a). Rule 40C-4.302(1)(b) - Cumulative Impacts Rule 40C-4.302(1)(b) and Section 12.2.8 require that an applicant demonstrate that its project will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. Under this requirement, if an applicant proposes to mitigate the adverse impacts to wetlands within the same drainage basin as the impacts, and if the mitigation fully offsets these impacts, the District will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. The Applicant has chosen to mitigate for the impacts to 0.99 acres of wetlands by preserving 17.8 acres of wetlands and 1.2 acres of uplands on-site. Since this mitigation will occur in the same drainage basin as the impacts and the mitigation fully offsets those impacts, the Applicant satisfies the requirements of the Rule. Rule 40C-4.302 - Other Requirements The parties have stipulated that the requirements of Paragraphs (c) and (d) of Rule 40C-4.302(1) do not apply. There is no evidence that the Applicant has violated any District rules or that it has been the subject of prior disciplinary action. Therefore, the requirements of Subsection (2) of the Rule have been met. Miscellaneous Matters County Pond Site The Seminole County pond site located on the east side of Lake Ann Lane and across the street from the project is not a jurisdictional wetland and does not have any wetland indicators. It is classified as an upland cut surface water. The Applicant is not proposing to impact any wetlands at the pond site, and the site is not part of the proposed mitigation plan for the project. The permit in issue here is not dependent on the pond site, and nothing in the application ties the project with that site. Indeed, the transfer of density rights from the County property is not relevant to the District permitting criteria. Review of Application When the decision to issue the permit was made, the District had received all necessary information from the Applicant to make a determination that the project met the District's permitting criteria. While certain information may have been omitted from the original application, these items were either immaterial or were not essential to the permitting decision. The application complies with all District permitting criteria. Contrary to Petitioners' contention, the Applicant does not have to be the contract purchaser for property in order to submit an application for that property. Rather, the District may review a permit application upon receipt of information that the applicant has received authorization from the current owners of the property to apply for a permit. In this case, the Applicant has the permission of the current owners (the Harold Kasik Living Trust).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the requested permit as described above. DONE AND ENTERED this 29th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2002. COPIES FURNISHED: Kirby B. Green, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Shirley B. Haynes 2764 Lake Howell Road Winter Park, Florida 32792-5725 Egerton K. van den Berg 1245 Howell Point Winter Park, Florida 32792-5706 Charles A. Lobdell, III, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Meredith A. Harper, Esquire Shutts & Bowen Post Office Box 4956 Orlando, Florida 32802-4956
The Issue The issues are whether IMC Phosphates Company is entitled to an environmental resource permit for phosphate mining and reclamation on the Ona-Ft. Green extension tract, approval of its conceptual reclamation plan for the Ona-Ft. Green extension tract, and modification of its existing wetland resource permit for the Ft. Green Mine to reconfigure clay settling areas, relocate mitigation wetlands, and extend the reclamation schedule.
Findings Of Fact Parties, Phosphate Mining, and Physiography Respondent IMC Phosphates Company, a Delaware general partnership authorized to do business in Florida (IMC), has applied to Respondent Department of Environmental Protection (DEP, which shall include predecessor agencies) for an environmental resource permit (ERP) to mine phosphate rock at the Ona-Ft. Green extension tract (OFG), approval of a conceptual reclamation plan (CRP) to reclaim the mined land at OFG, and modification of a previously issued wetland resource permit (WRP) to relocate and shrink clay-settling areas (CSAs), relocate mitigation wetlands, and extend the reclamation schedule at the Ft. Green Mine, which is an existing mine that is immediately west and north of OFG. Except for the submerged bottom of Horse Creek, which is sovereign submerged land, IMC owns all of the land on which OFG will be located, except for a 1.8-acre parcel owned by Valerie Roberts in Section 16, which is described below with the other sections forming OFG. IMC is negotiating with Ms. Roberts to purchase her land, and she has authorized IMC to pursue mining permits for the entire parcel, including her land. IMC Global, Inc., owns 80 percent of IMC. IMC Phosphates MP Inc., a Delaware corporation, is the managing general partner of IMC. As a successor to International Mining and Chemical Corporation, IMC has been in business for over 100 years. IMC is the largest producer of phosphate in the world. References in this Recommended Order to phosphate mining companies include all forms of business organizations. At present, IMC is operating four phosphate mines in Florida. The largest is the Four Corners Mine, which extends into Hillsborough, Polk, Manatee, and Hardee counties and three river basins. IMC also operates the Hopewell Mine in Hillsborough County, the Kingsford Mine in Hillsborough and Polk counties, and the Ft. Green Mine. Petitioner Charlotte County is located south of Sarasota and DeSoto counties and west of Glades County. The majority of Charlotte Harbor lies within Charlotte County. Charlotte Harbor is a tidal estuary at the mouths of the Peace and Myakka rivers. An Outstanding Florida Water and an Aquatic Preserve, Charlotte Harbor provides critical habitat for a variety of species. Charlotte Harbor is now an estuary of national significance under the U.S. National Estuary Program. Directly or indirectly, Charlotte Harbor supports 124,000 jobs and generates $6.8 billion in sales annually. To protect this unique natural resource, Charlotte County has adopted a local government comprehensive plan directing residential densities away from Charlotte Harbor. Charlotte County has also expended over $100 million in sanitary sewer capital expenditures for, among other things, the protection of Charlotte Harbor, such as by replacing private residential septic tanks with central sewer. Charlotte County's opposition to phosphate mining and reclamation in the Peace River basin is based on concerns about reduced river flows, reduced abundance and diversity of fish species, the loss of wetlands and first-order streams, and degraded water quality. Petitioner Peace River/Manasota Regional Water Supply Authority (Authority) is an agency authorized by Section 373.196(2), Florida Statutes, and created by interlocal agreement among Charlotte, Sarasota, DeSoto, and Manatee counties. The purpose of the Authority is to supply potable water to several suppliers in southwest Florida. Relying exclusively on the Peace River as its source of raw water, the Authority withdraws water from the Peace River two miles downstream of the point that Horse Creek empties into the Peace River. This point is about midway between Arcadia and Charlotte Harbor. As discussed below, the Authority's permit to withdraw water from the Peace River is dependent upon flows at a point upstream of the confluence of Horse Creek and the Peace River. The Authority's current water use permit expires in 2016. From its water treatment plant, which is located near the withdrawal point, the Authority pumps finished water to Charlotte, Sarasota, and DeSoto counties and the City of North Port. Approximately 250,000 persons rely on these suppliers, and, thus, the Authority, for their potable water. At present, the Authority is obligated to supply 18 million gallons per day (mgd), but anticipates demand to increase to 32 mgd by 2015. Petitioner Sarasota County (Sarasota County) owns and operates a water utility system, which currently supplies 24 mgd of potable water to 125,000 persons. Sarasota County obtains potable water from its wellfields, Manatee County, and the Authority, from which it may take up to 3.6 mgd. By 2017, Sarasota County plans to take 13.7 mgd of potable water from the Authority, partly to offset anticipated reductions in the amount of potable water presently being supplied by Manatee County. By 2017, the Authority will supply over half of Sarasota County's potable water. Sarasota County also shares Charlotte County's concerns about the overall environmental integrity of Charlotte Harbor, a small part of which is in Sarasota County. Intervenor Lee County (Lee County) is immediately south of Charlotte County. Nearly half of Charlotte Harbor lies within Lee County. Tourism produced an estimated $1.8 billion to Lee County's economy in 2002. Tourists are attracted to Lee County in part due to the high quality of Charlotte Harbor and its unique chain of barrier islands, passes, sounds, and bays that are integral to local fishing and boating. Lee County shares Charlotte County's concerns about the overall environmental integrity of Charlotte Harbor. Lee County is concerned about, among other things, degraded water quality from the discharge of turbid water, increased pollutant loads to the Peace River and Charlotte Harbor, adversely affected freshwater flows in the Peace River, and the consequences of the phosphate mining industry's inability to restore secondary tributaries, which provide base flow and environmental benefits to Charlotte Harbor. Petitioner Alan R. Behrens (Behrens) resides in Wimauma, Florida, which is in Hillsborough County. He has owned two five-acre tracts along Horse Creek since 1985 and owns a 2.5-acre lot in DeSoto County that fronts Horse Creek for 100-200 feet. The Horse Creek property is 10-15 miles downstream from OFG. Behrens has canoed the entire main stem of Horse Creek from the Peace River to OFG. On May 9, 2004, Behrens canoed up Stream 4w, which is a tributary of Horse Creek on OFG and is described in detail below. Behrens is a founder of Petitioner DeSoto Citizens Against Pollution, Inc. (DCAP), which was incorporated in 1990 as a Florida not-for-profit corporation and has operated in that status continuously since that time. DCAP's purpose is to protect fish, wildlife, and air and water resources; promote public health and safety; increase public awareness of potential environmental hazards; and discourage activities that may be adverse to public health or the environment. DCAP has 52 members, of whom 27 reside in Hardee County, 23 reside in DeSoto County, and two reside in Sarasota County. A substantial number of DCAP's members use Horse Creek for swimming, boating, canoeing, and fossil hunting. At least nine DCAP members own property abutting Horse Creek. Behrens and many DCAP members use wells on their property for potable water. Behrens and DCAP members are concerned that the clay- settling areas described below will increase flooding, the project will adverse affect the timing and volume of the flow and degrade the water quality of Horse Creek, the project will destroy wildlife habitat that--even if reclaimed--will be lost for many years, and the project will cause spills that will destroy fish and wildlife and adversely affect the ability of Behrens and DCAP to enjoy Horse Creek. OFG is in northwest Hardee County, about one-half mile east of the Manatee County line. OFG is about six miles south- southeast of the Four Corners, where Hardee, Manatee, Polk, and Hillsborough counties meet. OFG is about 35 miles east of Bradenton, 12 miles west of Wauchula, several miles south of State Road 62, and 2000 feet north of State Road 64. OFG represents the southernmost extent of phosphate mining in the Peace River basin to date. A nonrenewable resource for which no synthetic substitutes exist, phosphate is an essential nutrient and a major component of manufactured fertilizer. Less important uses of phosphate are for animal feed, soft drinks, and cosmetics. Mining phosphate rock and processing it into phosphoric acid or phosphorus make possible high-yield agriculture, which, by producing more food crop on less land, may reduce worldwide pressure to convert native habitat to improved agricultural land uses. Phosphate is available in limited quantities. Three- quarters of the recoverable phosphate rock in the United States is found in Florida, mostly in discrete deposits ranging from north-central Florida to Charlotte Harbor. Ten to fifteen million years ago, when peninsular Florida was submerged marine bottom, dead marine organisms accumulated as bone and shell on the ocean floor. These accumulations formed the Bone Valley Formation, which, as the seas withdrew and the peninsula emerged, occupies the lower part of the surficial aquifer at the site of OFG. Briefly, the main elements of the proposed activities in these cases, roughly in the order in which they will take place, are relocating wildlife; constructing a ditch and berm system around the area to be mined; removing topsoil from certain donor areas; removing the overburden and depositing it in rows of spoil within the mine cut; removing the underlying phosphate matrix and slurrying it to a nearby beneficiation plant at the Ft. Green Mine for processing to separate the phosphate rock from the sand and clay tailings; slurrying the clay tailings from the beneficiation plant to two CSAs at the southern end of the Ft. Green Mine; slurrying the sand tailings from the beneficiation plant back to the mine cut to backfill the excavation; applying topsoil to certain areas or green manuring areas for which topsoil is unavailable; applying muck to certain areas; contouring the reclaimed land to replicate pre-mining topography; analyzing the post-reclamation hydrology; reclaiming wetlands, streams, and uplands on the reclaimed landscape of OFG; maintaining and monitoring the reclaimed wetlands, streams, and uplands until DEP releases IMC from its ongoing reclamation obligations; correcting any problems in reclaimed areas; and removing the ditch and berm system and reconnecting the reclaimed mined area to the areas adjoining it. In the Findings of Fact, this Recommended Order uses "reclaim" to describe the process by which, post-mining, IMC and its reclamation scientists will construct wetlands, other surface waters, and wetlands at OFG. Likewise, in the Findings of Fact, this Recommended Order uses reclamation and mitigation interchangeably. In the Conclusions of Law, this Recommended Order discusses distinctions in these terms. IMC plans to use multiple draglines to dig a series of long, linear trenches in the mined areas of OFG. Each dragline will first remove overburden and place it in piles parallel to the trench being excavated. After removing the overburden, each dragline will remove the phosphate matrix, which consists of phosphate rock, sand, and clay, and deposit it in shallow depressions. Adding water from the mine recirculation system to the phosphate matrix, IMC will slurry the phosphate matrix to the Ft. Green beneficiation plant, which is about 12 miles from OFG. At the beneficiation plant, the phosphate rock will be separated from the sand and clay tailings, again using water from the mine recirculation system. After recovering the phosphate rock, IMC will slurry the sand tailings, which do not retain water, from the Ft. Green beneficiation plant to OFG for backfilling into the mined trenches with the overburden. Not used in the reclamation at OFG, the clay tailings, which retain water for an extensive period of time, will be slurried to the CSAs O-1 and O-2 on the Ft. Green Mine. CSAs O- 1 and O-2 are the subject of the WRP, which is discussed below. The volume of the clay leaving the beneficiation plant is greater than the clay in situ, pre-mining, because the slurrying process has saturated the clay. The CSAs provide a place to store the saturated clay while it drains and decreases in volume. The clay-settling process takes a long time, extended by IMC's intention to fill the CSAs by stages to make the most efficient use of the areas designated for the settling of clay. By stage-filling the CSAs, IMC will initially install the clay to a considerable height, using an embankment of approximately 50-60 feet. The water that separates from the clay will then drain across the sloped CSA until it enters the mine recirculation system for reuse. The remaining clay will dry and consolidate. After refilling each CSA approximately three times over about ten years, IMC will allow the clay to settle and consolidate a final time. When the clay has consolidated sufficiently to support agricultural equipment, IMC will regrade the area, reduce the side slopes, and remove the embankments, leaving the CSAs at a finished elevation 20-25 feet above the surrounding grade. Given the ongoing nature of IMC's phosphate mining operations, it is likely that some sand and clay tailings from OFG will go elsewhere, rather than return to the OFG mine cuts and CSAs O-1 and O-2, and that some sand and clay tailings from non-OFG mining operations will go to the OFG mine cuts and CSAs O-1 and O-2. However, these facts are irrelevant to the issues raised in these cases, except for consideration of IMC's sand- tailings budget, which is discussed below. Phosphate mining and reclamation practices have changed dramatically in the past 40 years. Although mining operations and reclamation practices are discussed below in detail, one development in mining and one development in reclamation bear emphasis due to the resulting reductions in water losses to the drainage basin. As explained below, mining operations are dependent upon large volumes of water, which flow through the mine recirculation system. Before 1963, phosphate mining pumped roughly 3000 gallons of water for each ton of mined phosphate rock. By the mid-1970s through 1990, the industry had reduced its groundwater consumption to 1500 gallons per ton of mined rock. From 1991 to 1999, the industry again reduced its groundwater consumption from 1200 gallons per ton to 650 gallons per ton, partly by achieving a 97 percent rate of water- recycling in the mine recirculation system. During roughly the same period, phosphate reclamation activities have expanded considerably. Prior to July 1, 1975, reclamation of mined land was voluntary, encouraged only by the availability of state funds to offset reclamation costs. Today, post-mining reclamation is required by law. As a consequence, post-mining reclamation 30 years ago was relatively modest in scope and intensity. One important development in reclamation practices is the phosphate mining industry's transition from early reclamation techniques that relied on relatively inexpensive contouring of the overburden that remained in the mine cuts following the extraction of the phosphate ore. These reclamation practices--aptly called Land-and-Lakes reclamation-- yielded post-reclamation excavations, such as reclaimed lakes or deep marshes, that, compared to pre-mining conditions, retained considerable volumes of surface water. The resulting increase in surface water area, compared to pre-mining surface water area, meant substantial loss of water from the drainage basin due to increased evapotranspiration. More recent reclamation practices, such as those proposed for OFG, feature more extensive backfilling of the mine cuts with tailings to restore pre-mining topography. The result is that less water is lost to evapotranspiration by retention in newly created lakes and deep marshes and more is timely held and passed by the natural drainage conveyances through detention, attenuation, runoff, and base flow--eventually entering the main basin river in volumes, rates, and times (relative to storm events) comparable to pre-mining conditions. Located near the western divide of the Peace River basin, OFG is near a topographical high point marking the divides among five drainage basins. From north to south, the four other basins are drained by the Alafia River, Little Manatee River, Manatee River, and Myakka River. OFG is located toward the bottom of an escarpment where the Polk Uplands descends into the DeSoto Plain. OFG is located almost entirely within a portion of the Horse Creek basin or sub-basin within the Peace River basin. This Recommended Order shall refer to the drainage basins that form the larger Peace River basin as sub-basins. A small portion of the western edge of OFG is within the West Fork Horse Creek (West Fork) sub-basin, and a small portion of the eastern edge of OFG is within the Brushy Creek sub-basin. OFG is toward the upper end of the Horse Creek sub-basin. The West Fork and Brushy Creek sub-basins within OFG contain no streams or stream segments and only, between them, about a half dozen wetlands of one-half acre in size or greater. Obviously, as separate sub-basins, these two areas on OFG are relatively far from Horse Creek. West Fork joins Horse Creek a couple of hundred feet south of OFG and just north of State Road 64. Brushy Creek joins Horse Creek six miles southeast of OFG. Horse Creek joins the Peace River at Ft. Ogden, about 40 miles south of OFG and 15 miles northeast of the mouth of the Peace River at Charlotte Harbor. The Peace River basin comprises about 2350 square miles and extends from its headwater lakes in north Polk County to Charlotte Harbor. By comparison, the Horse Creek sub-basin comprises about 241 square miles, or roughly ten percent of the Peace River basin. At Charlotte Harbor, the average flow of the Peace River is about 1700 cubic feet per second (cfs). By comparison, Horse Creek, at its confluence with the Peace River, flows at an average rate of about 170 cfs--again ten percent of the average rate of flow of the Peace River. West Fork, at its confluence with Horse Creek, flows at an average rate of about 10 cfs. The largest tributary on OFG flows at an average rate of about 0.75 cfs. Forming a little south of Four Corners, Horse Creek is one of five major tributaries of the Peace River. An ecological backbone of this region of Florida, Horse Creek is the only long-term, reliable flowing water system between the Manatee River on the west and Peace River on the east. OFG occupies the upper reaches of Horse Creek. Horse Creek is in good condition, notwithstanding 100 years of nearby cattle ranching. Most of Horse Creek is Class III waters, although a segment near the Peace River is Class I waters. Horse Creek is a moderately incised stream at OFG, especially over its southern two-thirds running through the mine site. Over the little more than three miles that Horse Creek flows through OFG, the streambed drops from nearly 120 feet National Geodetic Vertical Datum (NGVD) at the north end to about 75 feet NGVD at the south end. Within OFG, the valley that Horse Creek occupies is also relatively well-defined. The northern half of the streambed of Horse Creek within OFG is mostly around 100 feet NGVD. The highest adjacent elevations on OFG are about 120 feet NGVD. At least partly for this reason, most of the tributary streams, except in the flat northern portion of OFG, are also well-incised. OFG extends about 4 1/2 miles north to south, and ranges from 2/3 to 2 1/2 miles from east to west, for a total area of about 6 1/2 square miles. Lying entirely within Township 34 South, Range 23 East, OFG, from its northernmost border, occupies three sections, which are, from north to south: Sections 4, 9, and 16. Immediately west of the southern half of Section 9, OFG occupies most of the southern half of Section 8. Immediately west of Section 16, OFG occupies Section 17, as well as, immediately south of Section 17, all of Section 20 and most of the northern half of Section 29. OFG also extends to parts of four other sections: Sections 10 and 15 east of Sections 9 and 16, respectively, and Sections 18 and 19, west of Sections 17 and 20, respectively. The existing surface waters and nearly all of the existing wetlands are on the two columns of sections running north and south: on the east, Sections 4, 9, and 16 and, on the west, Sections 17, 20, the south part of Section 8, and the north part of Section 29. The northernmost extent of OFG, which consists of Section 4 and the north half of Section 9, is known as the Panhandle. Horse Creek enters OFG at the southwest corner of the Panhandle, at a point midway along the west border of Section 9. The stream flows south through the approximate center of OFG for about 1 1/2 miles until it leaves OFG for a very short distance at the southwest corner of Section 16, as it crosses a corner of property owned by the Carlton-Smith family (Carlton cutout). Horse Creek re-enters OFG at the northeast corner of Section 20 and runs just inside the eastern border of Section 20 and the portion of Section 29 within OFG. Horse Creek leaves OFG near the midpoint of the east border of Section 29. Numerous tributary streams enter Horse Creek within OFG, from the east and west sides of the creek. IMC and DEP have assigned to each of these streams or stream segments a number, followed by a letter to indicate if the stream or stream segment enters Horse Creek from the east or west. To the west of Horse Creek, proceeding from south to north, the streams are 0w, 1w, 2w, 3w, 4w, 5w, 6w, 7w, 8w, and 9w. To the east of Horse Creek, proceeding from south to north, the streams are 12e, 11e, 10e, 5e, 9e, 4e, 8e, 7e, 6e, 2e, 3e, and the Stream 1e series, consisting of Streams (sometimes referred to as stream segments) 1ee, 1ed, 1ec, 1eb, and 1ef. All of the streams join Horse Creek on OFG except Stream 2e, which joins Horse Creek a few hundred feet upstream of the point at which Horse Creek enters OFG, and Stream 7w, which empties into a backwater swamp (G185/G186) that, in turn, empties into either Horse Creek or the lower end of Stream 6w immediately before it empties into Horse Creek. The alphanumeric designation of the backwater swamp in the preceding paragraph is based on the Map F-2 series, which assign such a designation to each existing wetland community and then identifies the wetland community. For example, the backwater swamp consists of a wet prairie (G185) surrounded by a mixed wetland hardwoods (G186). If a wetland consists of more than one wetland community, this Recommended Order will refer to it either as a wetland complex with its lowest-numbered wetland community--here, wetland complex G185--or the combination of wetland communities--here, G185/G186. Reclaimed wetlands are identified by Figure 13A5-1, which assigns each wetland an alphanumeric designation and identifies its community. The letter indicates if the reclaimed wetland is east ("E") or west ("W") of Horse Creek. Table 13A5-1 2AI identifies each reclaimed wetland by its alphanumeric designation, community, acreage, and status as connected, isolated, or isolated and ephemeral. Table 13A5-1 2AI identifies 110 wetlands to be reclaimed. The largest wetland is E003, which is a 23.8-acre mixed wetland hardwoods that constitutes the riparian wetland of the Stream 1e series. The next largest is W003, which is a 20.7-acre wet prairie at the headwaters of Stream 9w. Only three other reclaimed wetlands will be at least ten acres: E018, an 11.3-acre wet prairie fringe on the east side of Section 4; E020, an 11.5-acre freshwater marsh at the center of E018; and W039, an 11.2-acre bay swamp at the headwater of Stream 1w. Thirteen reclaimed wetlands are at least five acres, but less than ten acres, and 30 reclaimed wetlands are less than one acre. Table 13A5-1 2AI identifies 44 reclaimed ephemeral wetlands totaling 101 acres. Reclaimed uplands are identified by Map I-2. Although the scales of Map I-2 (one inch equals about 820.5 feet) and the Map F-2 series (one inch equals about 833.3 feet) are larger than the scales of nearly all of the other maps and figures in these cases, acreages derived from these maps for uplands and existing wetlands are very rough approximations and do not approach in accuracy the acreages derived from Table 13A5-1 2AI for reclaimed wetlands. These maps and figures omit one stream segment to be reclaimed. IMC and DEP restricted the designation scheme to streams and stream segments that had once been natural systems, thus excluding artificially created waterways, such as those created by agricultural ditches cut into swales to drain upslope wetlands and uplands. During the hearing, older aerial photographs revealed that, under this scheme, the parties had omitted one stream segment, which they designated Stream 3e?. Stream 3e? is northeast of Stream 3e, from which it is separated by a wetland (G133/G134/G135/G136). Besides the streams, two other areas within OFG require early identification due to their prominence in these cases. The northerly area is the Heart-Shaped Wetland (G138/G139/G140/G141/G143/G143A), which is the large wetland in Section 4 into which the Streams 1e series and Stream 3e empty. The other area of heightened importance is in the center of OFG in Sections 17 and 16 and is called the East Lobe, Central Lobe, and West Lobe or, collectively, the Lobes. Dominated by large bayhead headwaters (West Lobe--G197; Central Lobe--G179; East Lobe--G178), the Lobes and the streams connecting them to Horse Creek are entirely within the no-mine area. The West and Central Lobes connect to the west bank of Horse Creek by Streams 6w and 8w, respectively. The East Lobe connects to the east bank of Horse Creek by Stream 9e. The no-mine areas of the West and East Lobes are much larger than the no-mine area of the Central Lobe, and the East Lobe contains a large area of uplands extending east of, and supporting, the large bayhead. Most OFG wetlands are connected or contiguous, and many of these wetlands are riparian wetlands within the 100-year floodplain of Horse Creek or a floodplain of one of the tributaries of Horse Creek. (As used in this Recommended Order, the floodplain of Horse Creek runs roughly parallel to the banks of Horse Creek and excludes any portion of the floodplain more directly associated with Horse Creek's tributaries or their connected wetlands.) All or nearly all of the isolated wetlands on OFG are ephemeral and permanent, except in very low rainfall periods. The scale of mining is large. The phosphate matrix, which contains the phosphate rock, is overlaid by a layer of sand and clay overburden, which, with topsoil, is projected to range from 20-40 feet, averaging 27 feet, in thickness. The phosphate matrix is projected to range from 25-35 feet, averaging closer to 25 feet, in thickness, although as much as four feet of the matrix may consist of interburden, such as sand, clay, limerock, or gravelly materials. Thus, mining will remove, on average, 52 feet of the earth's surface. In no area will mining extend deeper than the top of the limey clay bed, which is the confining layer dividing the surficial aquifer from the intermediate aquifer, of which the limey clay bed is a part. (Technically, the matrix is part of the confining layer, but it provides so little confinement that it is easier to consider it part of the surficial aquifer. A consequence of this fact is that the removal of the matrix does not increase the rate of deep recharge, at least where the matrix is replaced with cast overburden.) At OFG, the thickness of the surficial aquifer varies from 65-70 feet at the basin divide to 50 feet or less at the riparian wetlands and averages 55 feet. Beneath the intermediate aquifer, which is about 300 feet thick at OFG, lies the Floridan Aquifer. IMC projects OFG to yield 24 million tons of phosphate rock, 26 million tons of clay tailings, and 68 million tons of sand tailings. IMC projects that the no-mine areas, which are discussed below, will result in five million tons of phosphate rock reserves remaining in the ground post-mining. The scale of the environmental impact of mining is correspondingly large. Mining removes all flora and fauna, all the topography, soils, and upper geology, in the path of the electric dragline, which, as long as a football field (including one end zone), removes the uplands, wetlands, streams, and soils covering the matrix. At the depths at which mining will take place, IMC will be removing the entire surficial aquifer. Applications, ERP, CRP Approval, and WRP Modification Preliminary Matters These cases involve permits and an approval of the phosphate mining and reclamation processes. These cases do not involve the processes by which IMC transforms phosphate into end products, mostly fertilizer. With one exception, these cases do not involve the processes by which IMC separates the phosphate ore from the sand and clay (i.e., the beneficiation process). (The exception is that IMC is seeking to extend by ten years the life of the Ft. Green beneficiation plant to separate the phosphate from the matrix slurried from OFG.) These other post- mining processes, which are separately permitted, are not directly involved in these cases because IMC will slurry the phosphate matrix mined from OFG to the existing Ft. Green beneficiation plant, which is already permitted and operating. Even though the WRP modification will authorize the relocating of already-permitted CSAs at the Ft. Green Mine, the WRP modification will not authorize the design or construction of the embankments that retain the water within these CSAs while they are essentially clay ponds. DEP will separately permit the construction and operation of CSAs O-1 and O-2. Application and Proposed Agency Action On April 24, 2000, IMC filed a Consolidated Development Application for an ERP to mine phosphate from the proposed 20,675-acre Ona Mine, approval of the CRP for the Ona Mine following the completion of mining, and modification to the existing WRP for the Ft. Green Mine to install three CSAs in the area of the Ft. Green Mine immediately west of the Ona Mine and extend the life of the Ft. Green beneficiation plant by ten years to process the matrix from the Ona Mine. On January 17, 2003, DEP issued an Intent to Issue an ERP and proposed approval of the CRP. Petitioners in several of the above-styled cases challenged this proposed agency action, and the parties embarked upon an energetic prehearing process of preparation, including extensive discovery and prehearing telephone conferences with the Administrative Law Judge, in anticipation of a final hearing in the fall of 2003. IMC and DEP entered into a Team Permitting Agreement, pursuant to 1996 legislation creating the concept of Ecosystem Management. The Team Permitting Agreement incorporates the concept of "net ecosystem benefit," but, on its face, is not binding on IMC. The obvious purpose of the Team Permitting Agreement was to induce the permitting agencies (i.e., DEP, Florida Fish and Wildlife Conservation Commission (FWC), Southwest Florida Water Management District (SWFWMD), two regional planning councils, the Florida Department of Community Affairs, the Florida Department of Transportation (DOT), Hardee County, DeSoto County, and the U.S. Army Corps of Engineers) to use a common development application and coordinate, to the greatest practical extent, their respective reviews of the proposed activities of IMC. Three weeks prior to the start of the final hearing, on September 15, 2003, DEP issued the Final Order in Charlotte County et al. v. IMC Phosphates Company and Department of Environmental Protection, 2003 WL 21801924, 4 ER FALR 42 (Altman Final Order). The Altman Final Order denies IMC's application for a WRP/ERP and disapproves IMC's proposed CRP for the Altman tract, which is a short distance northwest of OFG. Although the final and recommended orders are detailed and complex, the Altman Final Order essentially concludes that IMC's CRP was inconsistent with applicable law because its basic reclamation concept was "to replace an existing system of high-quality wetlands . . . with a deep freshwater marsh." On the same date of the Altman Final Order, DEP Deputy Secretary Allan Bedwell ordered DEP's Bureau of Mine Reclamation (BMR) to re-examine IMC's application for an ERP and request for approval of the CRP for the Ona Mine to assure consistency between the proposed agency action approving the ERP, CRP, and WRP modification and the Altman Final Order. The Bedwell memorandum specifically directs BMR to verify IMC's classification and characterization of the extent and quality of wetlands on the site; verify that IMC's proposed reclamation activities, including its proposed control of nuisance or exotic species, "maintain or improve the water quality and function" of the biological systems present at the site prior to mining; and verify that IMC meets the financial assurance requirements of law. The memorandum concludes by directing BMR to modify any proposed agency action, if necessary. By memorandum dated January 5, 2004, Richard Cantrell and Janet Llewellyn, Deputy Directors of DEP's Division of Water Management Resources, responded to the memorandum from Deputy Secretary Bedwell. With respect to IMC's classification and characterization of wetlands, the January 5 memorandum states that DEP staff had conducted additional review of available aerial photographs, reviewed field notes from previous field inspections, conducted new field inspections, and received comments from IMC and Charlotte County. To describe better onsite habitats and communities, DEP staff had also revised the DOT Florida Land Use, Cover, and Forms Classification System (FLUCFCS) for use at OFG. The FLUCFCS codes are a three-digit numbering system to classify and identify individual vegetative communities or land uses. With respect to the ability of the proposed reclamation to maintain or improve the water quality and function of biological systems, the January 5 memorandum states that Deputy Directors Cantrell and Llewellyn had recommended to IMC that it consider phasing the mining on Ona, so that it could apply its experience in reclaiming OFG to the remainder of the original Ona Mine; preserving additional onsite natural stream channels and proposing more detailed reclamation plans for mined streams; preserving additional onsite bay-dominated wetland systems; providing additional assurances that upgradient sand/scrub areas will continue to support hydrologically, through seepage, preserved and restored bayheads; providing a plan to control nuisance and exotic species in the uplands, which, if infested, would degrade adjacent wetlands post-mining; and providing assurances that groundwater flows to Horse Creek and its preserved tributaries will be maintained during mining and post-reclamation. With respect to financial responsibility, the January 5 memorandum states that Deputy Directors Cantrell and Llewellyn had advised IMC that it must provide its financial responsibility for the mitigation of all wetlands authorized to be mined, rather than providing its financial responsibility on a phased basis, as it had previously proposed. On January 30, 2004, IMC filed a voluminous amendment to the Consolidated Development Application in a package known as the January submittal. The most evident change made by the January submittal is the reduction of the Ona Mine to OFG, which was the westernmost one-fifth of the original Ona Mine. The introduction to the January submittal highlights the changes that IMC made to the original application. The introduction explains that IMC has employed a revised mapping protocol to ensure that all waters of the State, including wetlands delineated by Florida Administrative Code Rule 62-340.300 and other surface waters delineated by Florida Administrative Code Rule 62-340.600, are classified as wetlands or water, pursuant to the modified FLUCFCS codes. Rejecting the nomenclature of the January 5 memorandum regarding the phasing of mining at the Ona site, the introduction to the January submittal identifies OFG as a 4197- acre, "free-standing" mining tract, not in any way "coupled to or dependent on the development of the remainder of the Ona Tract," from which it was taken. The introduction explains that "free-standing" means that OFG is a "complete mining, reclamation, and mitigation proposal" and that the OFG ERP will be "for a single-phase project." The introduction to the January submittal notes that IMC has enlarged the no-mine area to include "nearly all of the natural stream channel tributaries to Horse Creek present in the portions of the Parcel that have not been converted to improved pasture." The amendments thus avoid disturbing four additional natural stream segments. The introduction explains that IMC considered a series of factors in determining whether to mine a stream segment: "stream segments length, the existing land cover adjacent to the stream and its watershed, the complexity of the channel geometry[,] and historical agricultural impacts." The introduction adds that IMC has added a "state-of-the-art" stream restoration plan for mined natural streams. The introduction to the January submittal states that IMC responded in two ways to the suggestions about bay swamps in the January 5 memorandum. First, IMC modified the conventional mapping protocol for bay swamps. Rather than require that the canopy of the subject community be dominated by loblolly bay, sweetbay, red bay, and swamp bay trees, as prescribed by the FLUCFCS codes, IMC designated as bayheads "depressional, seepage-driven forested headwater wetlands, surrounded, at least in part, by moderately to well drained upland soils, with a defined outlet connection to waterways such that the 'bay head' soils are perennially moist but infrequently inundated." This new mapping protocol did not require the presence of bay trees in the canopy. Second, IMC enlarged the no-mine areas to avoid disturbing all but nine percent of existing bay swamps at OFG, totaling less than ten acres. IMC based its mine/no-mine decisions for particular bayheads on analysis of the hydrological, water quality, and relative functional value provided by these communities to fish and wildlife. The introduction concludes that IMC has also developed detailed plans to mitigate for the few mined bayheads. The introduction to the January submittal states that IMC has added new protections for the sand/scrub areas upgradient from, and providing seepage into, the bayheads in the West and East Lobes. First, IMC will avoid mining certain of these areas, presumably adjacent to the East Lobe. Second, IMC will employ special mining techniques and schedules to reclaim these upland areas quickly and effectively. Additionally, the introduction notes that IMC is proposing to: align the dragline "cut patterns" such that the spoil piles will be aligned with the groundwater seepage path where feasible or, where not feasible, to grade the spoil piles prior to backfilling the mine voids with sand so as not to impede post- reclamation groundwater flow; accelerate the sand backfilling schedule of the mined voids adjacent to avoided "bay heads" to one year following mining disturbance; and create a reclaimed stratigraphy that results in post-reclamation seasonal high and normal water table elevations and hydraulic conductivities in the seepage slopes that will provide the hydrologic support required to sustain these communities. As explained in a later section of the introduction to the January submittal, "stratigraphy" refers to the soil layers or horizons, which are described in detail below. The introduction states: "The majority of the overburden will be placed at depths below the surface soil horizons. As a result, the surface soils will either be comprised of translocated surface soils or a loose mixture of 'green manure organics,' overburden, and sand that both resembles the native soils and provides a suitable growing medium for the targeted vegetative communities." The introduction adds that, at final grade, sand tailings will always overlie overburden by at least 15 inches. The introduction asserts that the overburden underlying the backfilled sand tailings will be "comprised of and have properties which are similar to B horizons (subsoils) and C horizons (substratums) of native Florida soils." The introduction to the January submittal identifies a Habitat Management Plan (also known as the Site Habitat Management Plan) that, with the Conservation Easement and Easement Management Plan discussed below, will guide the revegetation of upland natural systems, control nuisance and exotic species in uplands, and manage all potential listed species that may be present, whether or not observed, in areas to be mined. The introduction also mentions habitat enhancements "to relocate Florida mice" and to manage gopher tortoises. The introduction concludes with IMC's undertaking to ensure that exotic/nuisance cover does not exceed ten percent in all reclaimed wetlands and to provide a 300-foot buffer around wetlands where cogongrass--a highly invasive nuisance exotic described in more detail below--will not exceed five percent coverage. The introduction to the January submittal notes that the proposed activities will maintain groundwater flows to Horse Creek and tributaries in the no-mine areas during mining and post-reclamation. The introduction again mentions IMC's commitment, where feasible, to align spoil piles with groundwater flow and, where not feasible, grade spoil piles before backfilling so as to add a thicker band of sand to these areas. The introduction also cites the ditch and berm system as a means to maintain groundwater seepage during mining. The introduction to the January submittal states that IMC will meet its financial-responsibility requirements for the entire cost of wetland-mitigation at OFG. The January submittal contains a discussion of community-mapping protocol. IMC's methodology for mapping bay swamps is discussed above. The most common vegetative communities and land uses are described in the following paragraphs. Improved pasture is actively grazed pasture dominated by cultivated pasture grasses, such as bahiagrass, but may support native grasses. Improved pasture may contain sporadic shrubs and trees. Pine flatwoods occupy flat topography on relatively poorly drained, acidic soils low in nutrients. The overstory is discontinuous with areas of dense, species-rich undergrowth or groundcover. Longleaf pine and slash pine predominate. Pine flatwoods require frequent fires, which are carried by grasses, and the pines' thick bark helps prevent fire damage to the trees. At one time, about three-quarters of Florida was covered by pine flatwoods. Palmetto prairies typically represent the undergrowth of pine flatwoods. Once the trees are removed, such as by timbering, the resulting community is a palmetto prairie, which is characterized by an often-dense cover of saw palmettos with no or scattered pines or oaks. Occupying dry, sandy, well-drained sites, sand live oak communities feature a predominance of sand live oaks and often succeed in relatively well-drained pine flatwoods after the removal of the pines, conversion to palmetto prairie, and suppression of fire. Sand live oak may also occupy xeric oak communities. Moister soils may support live oak communities, which also may succeed pine flatwoods after the removal of the pines, conversion to palmetto prairie, and suppression of fire. Hardwood-conifer mixed is a blend of hardwoods and pines with trees of both categories forming one-third to two- thirds of the cover. Hardwoods are often laurel oak and live oak, and pines are often slash pine, longleaf pine, and sand pine. The midstory is typically occupied by younger individuals of the overstory communities and wax myrtle. If sufficient light reaches the ground, groundcover may exist. Temperate hardwoods are often a forested uplands transition to a wetland. Temperate hardwoods are usually dominated by laurel oak, but other canopy species may include cabbage palm, slash pine, live oak, and water oak. Mixed hardwoods is a similar community, except that water oak is predominant in the canopy. Two of the three most prevalent forested wetlands on OFG are bay swamps, which have been discussed, and hydric oak forest, which, because of their location in the Horse Creek floodplain, will not be mined. At DEP's request, IMC remapped some of the floodplain that was uplands (and already in the no- mine area) to hydric oak forest. The other prevalent forested wetlands on OFG is mixed wetland hardwoods, which consists of a variety of hardwood species, such as the canopy species of red maple, laurel oak, live oak, sweetbay, and American elm. Slash pines may occur, but may not constitute more than one-third of the canopy. Suitable shrubs include primrose willow, wax myrtle, and buttonbush. Ferns are often present as groundcover. Often immediately downgradient of bay swamps, mixed wetland hardwoods are typically in the hydric floodplains of small streams. Transitioning between uplands, such as palmetto prairies, and the wetter soils hosting bay swamps and mixed wetland hardwoods, wetland forested mixed communities (also known as wetland mixed hardwood-coniferous) often occupy wet prairies from which fire has been suppressed for at least 20 years and, as such, "are largely or entirely an artifact of land use practices during the past sixty years or so that have allowed the conversion of wet prairies . . . to this cover type." The canopy of wetland forested mixed is slash pine, laurel oaks, live oaks, and other hardwoods that tolerate or prefer wetter soils. Wet prairies are a dense, species-rich herbaceous wetland, usually dominated by grasses. Wet prairies occupy soil that is frequently wet, but only briefly and shallowly inundated. Similar to freshwater marshes, but with shorter hydroperiods, wet prairies often fringe marshes, and their border will shift in accordance with rainfall levels over several years. Freshwater marshes consist predominantly of emergent aquatic herbs growing in shallow ponds or sloughs. Typical marsh herbs include pickerelweed, maidencane, and beakrushes. Hydroperiod and water depth drive the presence of species in different locations within a freshwater marsh. Marshes may be isolated or may occupy a slough in which their water flow is unidirectional. Heavily grazed or drained marshes may suffer dominance of primrose willow. Abundant softweed may indicate ditching, and soft rush, which cattle avoid, may indicate heavy grazing. Shrub marshes succeed stillwater freshwater marshes from which fire has been excluded. Shrub marshes form after agricultural ditching or culverted fill-road building. Common shrub species include buttonbush, southern willow, and primrose willow. Hydric trees, such as red maple and swamp tupelo, may occupy the edges of shrub marshes. IMC supplemented the January submittal with submittals dated February 26 and 27, 2004. Collectively, these are known as the February submittal. The February submittal is much less- extensive than the January submittal, although it includes substantive changes. After examining the January and February submittals, on February 27, 2004, DEP issued a Revised Notice of Intent to Issue an ERP for OFG, approved a revised CRP for OFG, and issued a revised WRP modification for the Ft. Green Mine, which now authorizes two CSAs--O-1 and O-2--that have the effect of relocating the previously approved CSAs farther away from Horse Creek and reducing their size due to the reduced scale of OFG as compared to the original Ona Mine; reconfiguring certain mitigation wetlands, necessitated by the relocation of CSAs O-1 and O-2, with a net addition of 2.7 acres of herbaceous wetland area; and changing the reclamation schedule to conform to the already-approved CRP for the Ft. Green Mine. IMC supplemented the January and February submittals with submittals dated March 30, April 18, and April 21, 2004. These submittals, which are known as the Composite submittal, are much less-extensive than the February submittal. DEP expressly incorporated the February submittal into the ERP, CRP approval, and WRP modification dated February 27, 2004. DEP has impliedly incorporated the changes in the Composite submittal into the ERP, CRP approval, and WRP modification. Thus, this Recommended Order uses the latest version of these documents when discussing the relevant permit or approval. The March 30, 2004, submittal updates the following maps, figures, and tables: Map F-2 (to correct legend), Map I-2 (to correct the post-reclamation vegetation in the vicinity of Streams 3e, 1w, 2w, 3w, and 4w), Figures 13A5-1 and 13B-8 (to reflect changes to Map I-2), Tables 12A1-1 and 13A1-1 (revised land uses in several stream locations), and Tables 13A5-1, 345A-1, and 26O-1 (to reflect above changes). The March 30, 2004, submittal also includes the Draft Study Plan for Burrowing Owls and Amphibians and revised Tables A and B for the Financial Responsibility section of the ERP. No material revisions are included in the submittals after March 30, 2004. Submittals after March 30, 2004, include financial responsibility forms, including a draft escrow agreement, and updated information on the temporary wetland crossing at the point that Stream 2e forms at the downstream end of the Heart-Shaped Wetland. The last item, dated April 20, 2004, is a revision of Figure 13B-8, but solely for the purpose of showing that the Heart-Shaped Wetland remains connected to Stream 2e, despite the temporary presence of a crossing. This is the last revision to the CDA prior to the commencement of the hearing. During the hearing, IMC submitted modifications of the mining and reclamation activities, and DEP agreed to all of these modifications. During the hearing, DEP proposed modifications of the mining and reclamation activities, and IMC agreed to all of these modifications. These modifications, such as identifying the annual hydroperiod of bay swamps as 8-11 months and the final changes to post-reclamation topography, are identified in this Recommended Order and incorporated into all references to the ERP or CRP approval. In general, the ERP addresses wetlands, surface waters, and species dependent upon either, and the CRP addresses uplands and species dependent exclusively upon uplands. Later sections of the Recommended Order will discuss the ERP, the CRP approval, and the WRP modification. All of the maps, figures, and tables incorporated into the ERP, CRP approval, or WRP modification are contained in the CDA. Overview of Mined Areas, No-Mine Areas, and Reclaimed Areas The ERP permits IMC to mine 3477 acres and requires IMC to reclaim 3477 acres. The ERP recognizes that IMC will not mine 721 acres, which is about 17 percent of the 4197-acre site. (Most acreage figures are rounded-off in this Recommended Order, so totals may not always appear accurate.) Although various exhibits and witnesses sometimes refer to the no-mine area as the preserved area, this label is true only insofar as IMC will "preserve" the area from mining. However, post-reclamation, the area is not preserved. After the property reverts to the Carlton-Smith family, it will return to its historical agricultural uses, subject to a Conservation Easement that is discussed below. Table 12A1-1 is the Mine Wide Land Use Analysis. Table 12A1-1 identifies, by acreage, each use or community presently at OFG, such acreage proposed to be mined, and such acreage proposed to be reclaimed. When not listed separately, this Recommended Order combines all non-forested wetlands, including mostly herbaceous wetlands and shrub marshes, into the category of herbaceous wetlands. Shrub marshes presently account for only 4.7 acres at OFG and will account for only 10.3 acres, post-reclamation. Ignoring 35 acres that presently are barren or in transportation or urban uses, the present uses or communities of OFG are agricultural (2146 acres), upland forests (904 acres), rangeland (510 acres), forested wetlands (380 acres), herbaceous wetlands (208 acres), and open water (15 acres). Nearly all of the existing agricultural uses are improved pasture (1942 acres); the only other use of significance is 165 acres of citrus. Well over half of the area to be mined is agricultural. Over half of the area to be mined is improved pasture (1776 acres, or about 51 percent of the mined area). Adding the citrus groves, woodland pasture, and insignificant other agricultural uses to the area to be mined, the total of agricultural uses to be mined is 1976 acres, or 57 percent of the mined area. The two most prevalent upland forest communities presently at OFG are sand live oak and pine flatwoods; the next largest community, hardwood-conifer mixed, accounts for about half of the size of sand live oak or pine flatwoods. These upland forests contribute about one-fifth of the area to be mined (731 acres, or 21 percent of the mined area). Cumulatively, then, agricultural land and upland forests constitute 78 percent of the mined area. For all practical purposes, all of the rangeland presently at OFG is palmetto prairie. This unimproved rangeland contributes a little less to the mining area that do upland forests; mining will consume 475 acres of rangeland, which is 14 percent of the mined area. Cumulatively, then, agricultural land, upland forests, and native rangeland will constitute 92 percent of the mined area. The addition of the remaining upland uses--25 acres of roads, 5 acres of barren spoil areas, and one acre of residential--results in a total of 3213 acres, or still 92 percent, of the 3477 acres to be mined. This leaves eight percent of the mined area, or 264 acres, as wetlands and other surface waters. As noted above, the wetlands are divided into forested and herbaceous wetlands. Forested wetlands will contribute 82 acres, or about two percent, of the mined area. Nearly all of the forested wetlands presently at OFG are divided almost equally among mixed wetland hardwoods, hydric oak forests, and bay swamps. Bay swamps total 104 acres. In terms of the forested wetlands present at OFG, mining will consume mostly mixed wetland hardwoods, of which 43 acres, or 36 percent of those present at OFG, will be mined. Mining will eliminate only nine acres, or nine percent, of bay swamps and six acres, or six percent, or hydric oak forests. Mining will eliminate a large percentage-- 67 percent--of hydric pine flatwoods present at OFG, but this is 12 acres of the 18 existing acres of this wetland forest community. Herbaceous wetlands will contribute 168 acres, or about five percent, of the mined area. Nearly all of the herbaceous wetland communities are wet prairies (108 acres) and freshwater marshes (81 acres). Mining will eliminate 95 acres, or 88 percent, of the wet prairie present at OFG, and 67 acres, or 83 percent, of the freshwater marshes present at OFG. IMC will mine 13.5 acres of open water, which consists primarily of cattle ponds and ditches. The only natural water habitat is natural streams, which total 2.2 acres. IMC will mine 0.9 acres of natural streams. Also incorporated into the ERP, Table 13A1-5, provides another measure of the impact of mining upon natural streams. According to Table 13A1-5, IMC will mine 2.8 acres of the 25.6 acres of natural streams. As noted in Table 13A1-5, reclamation of streams, which is discussed in detail below, is based on length, not acreage, and, under the circumstances, a linear measure is superior to an areal measure. Table 12A1-1 also provides the acreage of reclaimed community that IMC will construct. These habitats or uses are listed in the order of the size of the area to be reclaimed, starting with the largest. For agriculture, IMC will reclaim 1769 acres after mining 1976 acres. Adding the 170 acres of agriculture in the no-mine area, agricultural uses will total, post-reclamation, 1939 acres. For upland forest, IMC will reclaim 1055 acres after mining 731 acres. Adding the 173 acres of upland forest in the no-mine area, upland forest habitat will total, post- reclamation, 1227 acres. For rangeland, IMC will reclaim 323 acres after mining 475 acres. Adding the 35 acres of rangeland in the no- mine area, rangeland will total, post-reclamation, 358 acres. For herbaceous wetlands, IMC will reclaim 217 acres after mining 168 acres. Adding the 39 acres of herbaceous wetlands in the no-mine area, herbaceous wetlands will total, post-reclamation, 256 acres. For forested wetlands, IMC will reclaim 106 acres after mining 82 acres. Adding the 298 acres of forested wetlands in the no-mine area, forested wetlands will total, post-reclamation, 404 acres. ERP ERP Specific Condition 3 requires IMC to provide to DEP for its approval the form of financial responsibility that IMC chooses to use to secure performance of its mitigation costs. IMC may not work in any wetland or surface water until DEP has approved the method by which IMC has demonstrated financial responsibility. DEP shall release the security for each individual wetland that has been released by BMR, pursuant to Specific Condition 17. The escrow agreement is a two-party contract between IMC and J.P. Morgan Trust Company, as escrow agent. The escrow agreement acknowledges that IMC will transfer cash or securities to the escrow agent in the stated amount, representing IMC's obligations to perform ERP mitigation plus the ten percent add- on noted in the Conclusions of Law. If IMC fails to comply with the ERP or Section 3.3.7 of the SWFWMD Basis of Review, the escrow agent is authorized to make payments to DEP, upon receipt of DEP's written certification of IMC's default. The escrow agreement may be amended only by an instrument signed by IMC, DEP, and the escrow agent. ERP Specific Condition 3 requires IMC to calculate the amount of the security based on Table B, which is the Wetland Mitigation Financial Summary. Table B lists each forested and wetland community from Table 12A1-1, the acreage for each community, and the unit costs per acre of mitigation. The acreage figures are the acreage figures on Table 12A1-1. The unit costs per acre are as follows with the FLUCFCS codes in parentheses: herbaceous (641, 643)--$7304; forested bay wetland (611)--$11,692; other forested wetland (613, 617, 619, 630)--$11,347; shrub (646)--$8780; hydric palmetto prairie (648)--$9231; and (hydric) pine flatwoods (625)--$10,568. Table B also shows 10,141 feet of streams to be reclaimed at a cost per foot of $37, stream macroinvertebrate sampling at a total cost of $48,100, and water quality/quantity monitoring at a cost of $293,000. Adding the costs of wetland and stream reclamation, sampling, and monitoring, plus ten percent, Table B calculates the mitigation liability of IMC as $3,865,569. IMC has agreed to increase this amount for the reclamation of Stream 3e?. ERP Specific Condition 4 requires IMC to submit to BMR annual narrative reports, including the actual or projected start date, a description of the work completed since the last annual report, a description of the work anticipated for the next year, and the results of any pre-mining surveys of wildlife and endangered or threatened species conducted during the preceding year. The reports must describe any problems encountered and solutions implemented. ERP Specific Condition 5 requires IMC to submit to BMR annual hydrology reports. Relative to initial planting, IMC shall submit to BMR vegetative statistic reports in year 1, year 2, year 3, year 5, and every two years after year 5, IMC must submit to BMR vegetation statistic reports. ERP Specific Condition 6 addresses water quality in wetlands or other surface waters adjacent to, or downstream of, any site preparation, mining, or reclamation activities. Specific Condition 6.a requires, prior to any clearing or mining, IMC to sever the areas to be disturbed from adjacent wetlands. IMC severs or isolates the mining area when it constructs the ditch and berm adjacent to, but upland of, the adjacent wetlands not to be mined. Figure 14E-1 portrays the elements of the ditch and berm system as all outside of the no-mine area (or OFG property line, where applicable). In the illustration, from the mine cut toward the no-mine area (or OFG property line), IMC will construct the ditch, the 15-foot wide berm, the monitoring wells, and the silt fence. ERP Specific Condition 6.b requires the ditch and berm system to remain in place until IMC has completed mining and reclamation, monitoring indicates that no violation of "State Water Quality Standards" are expected, and DEP has determined that "the restored wetlands are adequately stabilized and sufficiently acclimated to ambient hydrological conditions." DEP's decision to allow the removal of the ditch and berm system shall be based on a site inspection and water quality monitoring data. Upon removal of the ditch and berm system, the area that had been within the ditch and berm system shall be restored to grade and revegetated according to the methods and criteria set forth in Specific Condition 14. ERP Specific Condition 6.c requires IMC to use best management practices for turbidity and erosion control to prevent siltation and turbid discharges in excess of State water quality standards, under Chapter 62-302, Florida Administrative Code. Specific Condition 6.d requires IMC daily to inspect and maintain its turbidity-control devices. If the berm impounds water above grade, IMC must daily visually inspect the integrity and stability of the embankment. ERP Specific Condition 7 requires that IMC implement a baseline monitoring program for surface water and groundwater and continue the program through the end of the mine life. The data from this program shall be included in the annual narrative reports described in Specific Condition 4. The locations of the sampling sites are depicted on Map D-4. ERP Specific Condition 7.a identifies three monitoring stations, which are in Horse Creek just upstream of the stream's entrance onto OFG (and possibly just upstream of the offsite confluence of Stream 2e with Horse Creek), in Horse Creek at State Road 64, and in West Fork a short distance upstream of its confluence with Horse Creek. Before and during mining, IMC must monthly monitor 18 parameters, including temperature, pH, dissolved oxygen, total suspended solids, conductivity, turbidity, color, total phosphorous, ammonia, nitrate/nitrite, and chlorophyll a. During mining, IMC must semi-annually monitor 11 additional parameters, including alkalinity, biological oxygen demand, chloride, and iron. ERP Specific Condition 7.b identifies one monitoring station, which is at the junction of Stream 6w and Horse Creek. Before and during mining, IMC must monthly monitor ten parameters, including temperature, pH, dissolved oxygen, total suspended solids, conductivity, and color. During mining operations, IMC must semi-annually monitor the same 11 additional parameters described in Specific Condition 7.a. ERP Specific Condition 7.c identifies two clusters of monitoring wells, one located near the offsite confluence of Stream 2e with Horse Creek and one located near the collecting station on West Fork near its junction with Horse Creek. During mining operations, IMC must semi-annually monitor 23 parameters, including pH, temperature, conductivity, alkalinity, total phosphorous, color, turbidity, chloride, iron, and nitrate/nitrite. ERP Specific Condition 8 requires IMC immediately to cease all work contributing to turbidity violations of "State Water Quality Standards established pursuant to Chapter 62-302, F.A.C." Specific Condition 8 requires IMC to stabilize all exposed soils contributing to the violation, modify work procedures that were responsible for the violation, repair existing turbidity-control devices, and install more such devices. Specific Condition 8 requires IMC to notify BMR within 24 hours of the detection of any turbidity violation. ERP Specific Condition 9 requires IMC to report all unauthorized releases or spills of wastewater or stormwater in excess of 1000 gallons per incident to BMR, as soon as practicable, but not later than 24 hours after detection. ERP Specific Condition 10 addresses water levels and flows in wetlands and other surface waters adjacent to, and downstream of, any site preparation, mining, and reclamation activities. Prior to any clearing or mining activities adjacent to no-mine wetlands and other surface waters, Specific Condition 10.a requires IMC to install monitoring wells and staff gauges and commence monitoring water levels, as required by ERP Monitoring Required, which is a part of the ERP that is discussed below. IMC shall monitor water levels in each of the no-mine streams at the point that it intercepts the 100-year floodplain of Horse Creek. ERP Specific Condition 10.a provides: During mining, recharge ditches adjacent to no-mine areas shall be charged with water or recharge wells shall be installed to maintain base flows and/or minimize stress to the vegetation in the preservation areas. Water levels in the recharge ditches shall be maintained at levels sufficient to support the normal seasonal water level fluctuations in the wetlands as determined from the baseline monitoring included in Table MR-1. Under ERP Specific Condition 10.a, prior to any clearing or mine activities, IMC must install monitoring wells and staff gauges and monitor water levels, as specified in the ERP Monitoring Required. IMC must daily monitor water levels in each of the no-mine streams at the point of its interception with the 100-year floodplain of Horse Creek. During mining, IMC shall charge recharge ditches with water or install recharge wells to maintain base flows and minimize stress to vegetation in no-mine areas. IMC must maintain water levels in the recharge ditches at levels sufficient to support the normal seasonal water level fluctuations in the wetlands, as determined from the baseline monitoring included in Table MR-1, which is described below. IMC must daily check the water levels in the recharge ditches, record this information in logs, and make these logs available to BMR during its quarterly inspections. IMC shall monthly inspect the water levels in adjacent no-mine wetlands and notify BMR in writing if these wetlands show signs of stress. If adjacent no-mine wetlands become stressed, upon DEP's approval, IMC will take additional actions, such as altering mining and reclamation procedures, modifying the recharge ditch, providing additional sources of water, and conducting additional monitoring. During the hearing, IMC hydrologist and engineer Dr. John Garlanger testified: "[IMC] will install a recharge well system along the preserved areas." (Tr., p. 2800) The parties treated recharge wells as a part of the ditch and berm system, both at the hearing and in their proposed recommended orders (DEP, paragraph 75; Charlotte County, paragraph 575; and IMC, paragraph 339.) However, Specific Condition 10.a imposes no such obligation upon IMC, nor does any other provision in the ERP or the CDA. The above-quoted provision of Specific Condition 10.a identifies recharge wells as an alternative. The other option in Specific Condition 10.a is to charge the ditches with water. This condition is confusing because it poses, as alternative requirements, one option of a specific effect--i.e., recharged ditches--and the other option of a means of achieving that effect--i.e., recharge wells. The objective is sufficient water in the ditch. The means of charging the ditch would appear to be limited to direct rainfall, pumping water from the mine cuts, diverting water from the mine recirculation system, or pumping water from the intermediate or Floridan aquifer through recharge wells; at least the first two of these charging options are already incorporated into the OFG ditch and berm system. Confirming that recharge wells are optional is Figure 14E-1, which labels the recharge well depicted at the bottom of the ditch as "Alternate--Recharge Well." Figure 14E-1 illustrates a pump forcing the water from the bottom of the deeper mine cut to the bottom of the recharge ditch. (Figure 14E-1 also illustrates that--in order, running from the mine cut toward the no-mine area (or OFG property line)--the ditch, the 15-foot wide berm, the monitoring wells, and the silt fence will all be located outside of the no-mine area (or within OFG).) ERP Specific Condition 10.b prohibits reductions in downstream flows from the project area that will cause water quality violations in Horse Creek or the degradation of natural systems. IMC shall monitor surface water levels continuously at the above-described points at State Road 64 and West Fork and monthly near the above-described junction of Stream 2e and Horse Creek. IMC shall monitor monthly at the above-described clusters of monitoring well locations and at piezometers located across Section 9 from the no-mine area into the uplands to the east, in the West Lobe and the adjacent uplands to the west, in the East Lobe and the adjacent uplands to the east, and in Horse Creek about one-quarter mile from the southern border of OFG. IMC shall daily monitor rainfalls at a rain gauge near the junction of Stream 2e and Horse Creek. IMC shall report the results of the monitoring in the reports required in Specific Condition 4. ERP Specific Condition 11 requires IMC to obtain authorization from FWC before relocating gopher tortoises or disturbing their burrows. ERP Specific Condition 11 also requires IMC to relocate gopher frogs and other commensals to FWC-approved sites before clearing. At the time of the hearing, FWC had not yet approved IMC's plan to relocate gopher tortoises, but this approval was expected shortly. ERP Specific Condition 12 requires IMC to complete mining, filling, and reclamation activities generally in accordance with the schedule stated in this condition. Specific Condition 12.a prohibits IMC from commencing severance or site preparation more than six months prior to mining, except as approved by DEP for directly transferring topsoil or muck to a contoured mitigation site. IMC must complete final grading, including muck placement, not later than 18 months after the completion of mining operations, which include the backfilling of sand tailings. IMC must conduct its hydrological assessment in the first year after contouring. ERP Specific Condition 12.a provides a timetable for work in wetlands and other surface waters. IMC may not commence severance or site preparation more than six months prior to mining. IMC shall complete final grading, including muck placement, not more than 18 months after the completion of mining operations, including backfilling with sand tailings. IMC shall complete Phase A planting, which is of species that tolerate a wide range of water levels, not more than six months after final grading or 12 months after muck placement. IMC shall conduct the hydrological assessment in the initial year after coutouring. IMC shall complete Phase B planting, which is of species that tolerate a narrower range of water levels, within 12 months after the hydrological assessment and Phase C planting, which is shade-adapted groundcover and shrubs, as well as additional trees and shrubs required to meet the density requirements of ERP Specific Condition 21 [sic; probably should be ERP Specific Condition 16], at least two years prior to release of forested wetlands. ERP Specific Condition 12.b provides that IMC shall clear, contour, revegetate, and reconnect wetlands and watersheds as shown in Tables 3AI-6A and 3AI-10A, Maps H-1, H-9, and I-6, and Figures 13B-8, 13A5-1, and CL-1. Table 3AI-6A lists each reclaimed wetland by number, the last year in which it will be disturbed, the last year in which it will be mined, the year in which grading will be completed, the year in which revegetation will be completed, and the number of years between mining or disturbance and reclamation and revegetation. The span of years between mining or disturbance and reclamation ranges from three (two wetlands) to eight (six wetlands). Table 3AI-10A is the Reclamation Schedule Summary. The table identifies four reclamation units in the Horse Creek sub-basin, one reclamation unit in the West Fork sub-basin, and one reclamation unit in the Brushy Creek sub-basin. For each reclamation unit, Table 3AI-10A shows the period of mining, period of mine operations, period for contouring, and period for revegetation. These years are relative: mining runs four years, mine operations run seven or eight years (starting one year after mining starts), contouring runs seven or eight years (starting within one year of the end of mining), and revegetation runs five or six years (starting one year after the start of contouring). Map H-1 is the Mine Plan. Map H-1 assumes four draglines will operate in OFG for five years of active mining. IMC's tentative plan is first to mine the west side of OFG, which is nearer the Ft. Green Mine at which the draglines are presumably deployed at present, and then to mine adjacent mining blocks. For instance, IMC would mine the northwest corner of Section 4 in Year 1, the southwest corner of Section 4 in Year 2, the northeast corner of Section 4 in Year 3, and the southeast corner of Section 4 in Year 4 before removing the dragline south of Section 4 to mine an unmined area in Year 5. Map H-1 depicts the ditch and berm system running continuously along the edge of the no-mine area from the north end of OFG, south along the no-mine borders that trace the east and west edges of the 100-year floodplain of Horse Creek, to their southern termini. On the east floodplain, the ditch and berm system turns east at the northwest corner of Section 21, near the Carlton cutout, runs to the easternmost extent of OFG, turns north to the northeast corner of Section 4, and runs to the northwest corner of Section 4, where the ditch and berm system ends. On the west floodplain, the ditch and berm system runs to the southernmost extent of OFG near its confluence with West Fork, turns west and north, as it traces the border of OFG along Sections 29, 20, and 19, where it ends at a point about one-quarter mile from the northern boundary of Section 19. For the areas closest to the no-mine area, Map H-1 also depicts the direction of the mine cuts and, inferentially, the spoil piles. These cuts and piles are generally perpendicular to the direction of Horse Creek. Figure 2AI-24 displays the locations of the six reclamation units identified in Table 3AI-10A. The West Fork and Brushy Creek reclamation units occupy the sub-basins bearing their names, so they are at the western and eastern edges, respectively, of OFG. The HC(1) reclamation unit is almost all of Section 4. According to Table 3AI-10A, IMC will mine this reclamation unit from 2006-09, contour it from 2009-15, and revegetate it from 2010-15. Combining the information from Map H-1 for the Stream 1e series, all of it but Stream 1ee, which is the most-downstream stream, will be mined in the first year of the sequence, and Stream 1ee will be mined in the second year. However, Stream 1ee will be disrupted longer because a 200 foot- wide dragline access corridor runs across it, just upstream of the Heart-Shaped Wetland, as shown on Map H-1 and Figure RAI 514-1. Map H-9 is the Tailing Fill Schedule. The tailings are the sand tailings; the clay tailings, which are called waste clays, are deposited in the CSAs. Sand tailings are backfilled into mine cuts starting in year 3, and the process is completed in year 7. Map H-9 reproduces the blocks shown on Map H-1, except for one change in Section 20, and adds two years to each block. An explanatory note on Map H-9 states that IMC will backfill and grade the upland areas immediately west of the West Lobe and east of the East Lobe with sand tailings within one year of mining. Map I-6 is the Post-Reclamation Streams. This Recommended Order addresses streams in detail below. As already noted, at the hearing, DEP identified Stream 3e? as another stream eligible for restoration under the eligibility criterion used in these cases, and IMC has agreed to restore this stream and add it to Map I-6. Figure 13B-8 is the Post-Reclamation Connection Status of the reclaimed wetlands. A map, Figure 13B-8 depicts connected wetlands, isolated wetlands, isolated wetlands that are ephemeral, and cattle ponds. Figure 13A5-1 is the Identification of Created Wetlands. Also a map, Figure 13A5-1 assigns numbers to each reclaimed wetland and identifies the habitat to be reclaimed. These two figures provide a good basis for comparing the reclaimed wetlands to the existing wetlands by type, location, size, and proximity to streams. These two figures confirm the removal of cattle ponds to points considerable distances from Horse Creek, streams, riparian wetlands, or even most isolated wetlands. Thirteen cattle ponds totaling 7.6 acres will be reclaimed on OFG. Generally, these cattle ponds are located as far away as possible from the 100-year floodplain of Horse Creek. Except for the cattle ponds and three connected reclaimed wetlands that drain to the West Fork or Brushy Creek, all of the connected reclaimed wetlands will be connected to Horse Creek, usually by streams, but in several cases directly to the 100-year floodplain of Horse Creek. Connected reclaimed wetlands include the headwater and intermittent wetlands of the Stream 1e series (E003/E006/E007/E008/E009/E013/E015/E016), the headwater wetlands of Stream 3e (E022/E023/E024), and the headwater wetlands of Stream 3e? (E018/E019/E020). The decision at the hearing to reclaim Stream 3e? is not reflected on Figure 13A5-1 or 13B-8, which depicts as isolated the large wetland to the northeast of the headwater wetland of Stream 3e. The Stream 1e series reclaimed wetlands complex totals 44.9 acres. The Stream 1e series existing wetlands complex covers a smaller area, perhaps 10 fewer acres. However, the reclaimed wetlands will be somewhat simpler. IMC will reclaim one freshwater marsh (E006) where five presently exist (G108, G115, G125, G126, and G129). IMC will replace two gum swamps (G123 and G121) and two wetland forested mixed (G102 and G132) with the predominant mixed wetland hardwoods (E003). IMC will replace one of the freshwater marshes with hydric oak forest. Just west of the riparian corridor, IMC will replace a wet prairie (G119) with a little hydric flatwoods (G119A) with another freshwater marsh (E014) and will mine a small wet prairie (G028) to the east of the corridor and not replace it with any wetland. On the plus side, IMC will add two very small bayheads (E008--0.7 acres and E013--0.7 acres) to the west side of the corridor and will relocate and expand a large hydric flatwoods (G107) that is beside a small unreclaimed community--a hydric woodland pasture (G105). The reclamation of the headwater of Stream 3e better re-creates the existing wetlands, in size and type of community. The only change is the conversion of a shrub marsh (G134) in the center of the wetland to a freshwater marsh (E023), essentially enlarging the freshwater marsh (G135) presently in the center of this wetland. The size of the existing and reclaimed wetlands associated with the riparian corridor of Stream 3e and its headwater wetland appear to be the same. The reclamation of the headwater of Stream 3e? provides a more complicated complex of wetland communities than presently exists at that location. The ditch (G019) will be replaced with a natural stream, whose riparian corridor is not depicted due to the fact that IMC agreed to reclaim Stream 3e? at the hearing; however, the reclaimed wetland corridor undoubtedly will be more functional than the present ditch. Presently, the headwater wetland is a large freshwater marsh (G016) fringed by mixed wetland hardwoods (G014) and a wet prairie (G105). A cattle pond (G017) is in the wet prairie, and another cattle pond is at the point where Stream 3e? forms. The north side of this wetland is heavily ditched. The reclaimed headwater wetland, which will be about the same size as the present wetland, will consist of an interior shrub marsh (E019) and freshwater marsh (E020) and a wet prairie fringe (E018). A replacement cattle pond (E026) is moved farther away from the headwater wetland. Reclamation around the Heart-Shaped Wetland results in a more complicated array of wetlands than presently exists. Three ephemeral wet prairies (E021, E026, and E031) will be reclaimed north and west of the Heart-Shaped Wetland and Stream 2e where no wetland exists presently. An isolated freshwater marsh (E034) will be reclaimed south of the Heart-Shaped Wetland where no wetland exists today. Two ephemeral wet prairies (E026 and E037) totaling 4.5 acres will be reclaimed south and east of Stream 2e, close to the no-mine area surrounding Streams 6e and 7e, again where no wetland exists presently. However, IMC will not reclaim a hydric flatwoods (G157) connected to the south border of the headwater wetland of Stream 8e. Reclamation will relocate the headwater wet prairie of Stream 9w closer to Horse Creek. Mining two wet prairies (G047 and G048) and reclaiming them with a single wet prairie of at least the same size (W003--20.7 acres), IMC will also reclaim the downstream portion of Stream 9w with a mixed wetland hardwoods and add a gum swamp (W005--2.4 acres) at the end of Stream 9w, as it enters the no-mine corridor of Horse Creek. IMC will also reclaim an ephemeral wet prairie (W002) just north of the reclaimed segment of Stream 9w. Across Horse Creek from its junction with Stream 9w, IMC will mine the eastern half of a roughly five-acre bayhead (G166), reclaiming the mined part of the bayhead with a mixed wetland hardwoods (E048--6.0 acres). However, where no wetlands presently exist, IMC will reclaim an ephemeral wet prairie (E044) and a larger wetland consisting of a freshwater marsh (E047--9.0 acres) fringed by an ephemeral wet prairie (E046--7.1 acres). In RAI-173 in the CDA, IMC explains that no-mine lines initially ran through some wetlands due to the limited level of detail available in the small scale maps used at the time. IMC representatives have discussed each such bifurcation with DEP biologist Christine Keenan, and IMC made adjustments that satisfied DEP, obviously not eliminating all of the bifurcated wetlands. Alluding to the impracticability of eliminating all bifurcated wetlands, IMC notes in its response to the request for additional information: "A small feature protruding into a mining area is one of the more difficult features to effectively mine around. It requires significant extra distance of ditch and berm systems, which both increases costs and results in greater losses of phosphate ore recovery." Subject to two exceptions, the southernmost extent of reclaimed ephemeral wetlands will be close to the Lobes, especially the West and Central Lobes. Eight such wetlands (W021, W015, W017/W018, W019/W020, W012, W013, W016 and W011) will be west of Horse Creek, and three such wetlands will be east of Horse Creek (E057, E061, and E053). (Although the headwater wetland of Stream 7w, W012 is depicted as ephemeral in Figure 13B-8.) Most of these wetlands will be wet prairies. Three of these reclaimed ephemeral wetlands appear to be in the location of existing wetlands (G093/G094, G091/G092, and G090), and the existing wetlands are freshwater marshes fringed with wet prairies, except that the smallest, G090, is a wet prairie. The last reclaimed wetland on the east side of Horse Creek is just north of the Carlton cutout. In reclaiming Stream 5e, IMC will reclaim a small bayhead (E063--1.3 acres) in the middle of the stream's OFG segment. This replaces a wet prairie/hydric oak forest (G204/G205) in the same location and of the same size. On the other side of Horse Creek and to the south of Stream 5e, IMC will reclaim the headwater wetlands of Streams 5w, 4w, 3w, and 2w. The headwater wetland of Stream 5w is a long freshwater marsh (G210) with a small shrub marsh (G207) that drains an elaborate array of agricultural ditches to the west. These ditches shifted some of the drainage that historically entered Stream 4w into Stream 5w. Reclaiming the stream with a wider wetland forested mixed corridor, as it will do for Streams 4w, 3w, and 2w, IMC will expand the headwater wetland by reclaiming a long freshwater marsh (W024--7.9 acres) fringed on its upgradient side by a small wet prairie (W023--2.2 acres). IMC will also remove a cattle pond (G209) presently abutting the center of the freshwater marsh. IMC will reclaim an ephemeral wet prairie (W026) between Streams 5w and 4w, relatively close to the Horse Creek floodplain. Except for a very small ephemeral wet prairie just west of the headwater wetland of Stream 4w and an ephemeral, largely mixed wetland hardwoods reclaimed in the West Fork sub- basin (W041/W042/W043), W026 is the southernmost reclaimed ephemeral wetland on OFG. The pattern of the reclamation of Streams 4w, 3w, and 2w is otherwise identical: each reclaimed stream, in a reclaimed wetland forested mixed corridor, will receive water from reclaimed freshwater marshes of 3.5 to 5.1 acres in size. Presently, Stream 4w has no headwater marsh, instead receiving water from the elaborate ditching scheme described in connection with Stream 5w. Streams 3w and 2w presently receive water from small headwater wetlands, although Stream 2w also receives water from an agricultural ditch. The last major reclamation on the west side of Horse Creek relates to Stream 1w. Alone of all the streams, Stream 1w is an agricultural ditch throughout its length, except for a short segment just upstream from the no-mine area. However, alone of all the streams at OFG, Stream 1w drains a primarily seepage-supported wetland. This well-defined headwater wetland complex comprises, from upstream to downstream, a cattle pond (G505), freshwater marsh (G506), mixed wetland hardwoods (G507), bay swamp (G513), wetland forested mixed (G512), wet prairie (G514), hydric oak forest (G511), and ditch (G512A). Reclaimed, this headwater will be the largest reclaimed bay swamp (W0399-1.2 acres). In addition to the two small bay swamps in the wetland corridor of Stream 1e series, the small bay swamp in Stream 5e, and the Stream 1w headwater bay swamp, the only other bay swamp to be reclaimed on OFG will be a part of a wetland (W037/W036) that will be in the center of Section 19 and drain into the West Fork. The bay swamp component of this wetland will be 4.4 acres and will replace a similarly sized wetland (H008/H009/H009A) with a smaller bay swamp core. Map CL-1 is the Reclamation Schedule. This map identifies the year in which specific areas within OFG will be reclaimed. With two exceptions, Map CL-1 tracks Map H-9, which is the Tailing Fill Schedule, by identifying the same blocks and adding two years to each of them. One exception may be due to the February 19, 2004, and February 26, 2004, revisions of Map H-9. The latter revision changed the year of backfilling part of northwestern Section 20 from year 7 to year 5. Map CL-1 tracks the older version of Map H-9 and provides for reclamation of this area within Section 20 for year 9, not year 7. This means that part of the northwestern Section 20 would remain backfilled, but not revegetated, for four years. This may be an oversight in Map CL-1 because it was last revised January 22, 2004. The other exception concerns the uplands immediately east of the East Lobe. Map H-9 provides for sand tailings for the northern half of this area in year 6 and for the southern half of this area in year 5, but Map CL-1 provides for both areas to be reclaimed in year 7, so the southern half would remain backfilled, but not revegetated, for two years. This may be intentional, as ERP Specific Condition 12.d requires that IMC backfill and contour the two areas upslope of the bayheads in the West and East Lobes within one year after the completion of mining, but nothing in the ERP requires expedited revegetation of these upland areas. ERP Specific Condition 12.b requires IMC to include mining and reclamation schedule updates in the annual reclamation report that it files, pursuant to Chapter 62C-16, Florida Administrative Code. Specific Condition 12.b warns that "significant changes" to these schedules may require a permit modification. ERP Specific Condition 12.c states, in its entirety: "Mine cuts shall be oriented in the direction of ground water flow, generally perpendicular to Horse Creek as shown on Map H-1." The introduction to the January submittal, witnesses, and parties agree that IMC is required to orient the spoil piles in the direction of groundwater only to the extent practicable, so the unconditional language of ERP Special Condition 12.c is inadvertent. ERP Specific Condition 12.d provides that sand tailings placement and final contouring shall be completed within one year after the completion of mining, as shown on Map H-9, in the two areas upslope from the unmined bayheads (G178 and G197), which are in the East and West Lobes. ERP Specific Condition 13 addresses the construction, removal, and revegetation of the pipeline corridor shown on Figure RAI 514-1. This figure depicts a narrow "Mine Access Corridor (Pipelines, Road, Powerlines)" passing at the point that Stream 2e forms at the downgradient end of the Heart-Shaped Wetland. Specific Condition 13 contains seven subsections governing the pipeline corridor to minimize its impact on the wetlands and other surface waters that it crosses. Figure RAI 514-1 also depicts a 200-foot wide "Dragline Walkpath Corridor" that crosses Stream 1ee and Stream 3e within 100 feet of the Heart-Shaped Wetland. No conditions attach to the construction, operation, removal, and reclamation of this area because, unlike the pipeline corridor as it crosses Stream 2e, all of this portion of the dragline corridor will be mined. ERP Specific Condition 14 states that IMC shall restore as mitigation 322 acres of wetlands, as shown in Maps I-1, I-2, I-3, and I-6; Figure 13A5-1; and the post-reclamation cross-sections. Map I-1 is the Post Reclamation Topo. IMC updated this map with several limited changes at the end of the hearing, and DEP accepted the new Map I-1. Comparing Map I-1 with Map C-1, which is the Existing Topography, the post-mining topography substantially replicates the pre-mining topography, although Table 26M-1 reveals a lowering of some of the highest pre-mining elevations, including the highest elevation by eight feet. Maps I-2 and I-3 are, respectively, Post Reclamation Vegetation and Post Reclamation Soils. As noted above, Specific Condition 14 references these maps, but only in connection with the restoration of 322 acres of wetlands. Maps I-2 and I-3 cover all of OFG, so they cover wetlands and other surface waters, which are properly the subject of an ERP, and uplands, which are properly the subject of a CRP approval. Naturally, the ERP does not incorporate the all of Maps I-2 and I-3 because they include all of the uplands. Unfortunately, as discussed in the next section, the CRP approval likewise fails to obligate IMC to reclaim the uplands in accordance with Map I-2 and the upland soils in accordance with Map I-3. This omission is inadvertent, so the Recommended Order will assume that IMC will reclaim the uplands as depicted in Map I-2 and the upland soils as depicted in Map I-3. Although the upland portions of Maps I-2 and I-3 should be discussed in the next section, they will be discussed in this section because the CRP approval fails to incorporate them and discussing both maps in one place allows for a more coherent presentation. Map I-2 is the Post Reclamation Vegetation. Map I-2 depicts the post-reclamation upland and wetland vegetation on OFG. This map reveals wide edges of roughly one-quarter to one- half mile of reclaimed improved pasture on the east and west edges of OFG. The core of OFG is Horse Creek and its 100-year floodplain, which are always within, but do not always define, the no-mine area. Between the no-mine area and the reclaimed improved pasture are the reclaimed wetlands described above and larger area of reclaimed uplands described below. Map I-2 and Map F-1, which is Pre Mining Vegetation, allow a comparison, by community, location, and area, of reclaimed uplands with existing uplands. In broad overview, IMC will reclaim everything in Section 4 outside the Heart-Shaped Wetland, which is the northernmost extent of the no-mine area, and Stream 2e. From the point that Horse Creek enters OFG, IMC will reclaim a broad area between the no-mine area and reclaimed improved pasture, south to the Carlton cutout. From this point, reclamation will be limited to the west side of Horse Creek, and the area between the no-mine area and reclaimed improved pasture will narrow progressively for the remaining 1 1/2 miles that Horse Creek runs in OFG. The width of the core, or no-mine area, is generally about 750 feet, but widens considerably at different points. Where Horse Creek enters OFG, the no-mine area is approximately 1750 feet wide, but narrows south of Stream 8e to about 750 feet. From the Central Lobe to the East Lobe, the no-mine area expands to nearly 4000 feet across. Except for another expansion at the West Lobe, the width of the no-mine area south of the Lobes remains at about 750 feet until Horse Creek exits OFG. The riparian wetlands of Horse Creek, which are within the no-mine area, are mixed wetland hardwoods for the first mile that Horse Creek flows in OFG and hydric oak forest for the remainder of Horse Creek's passage through OFG. The width of the non-pasture uplands adjacent to the no-mine area also varies. In describing the width of these upland areas between the no-mine area and the reclaimed improved pasture, this Recommended Order will include the reclaimed wetlands described above. These wetland areas are small, except for the headwater wet prairie of Stream 9w, the headwater freshwater marshes of Streams 5w, 4w, 3w, and 2w, and a few isolated wetlands. On both sides of Stream 2e, IMC will reclaim a band of hardwood conifer mixed of about one-half mile in width. At present, this area is occupied by a smaller area of hardwood conifer mixed and nearly a one-half mile wide band of pine flatwoods or, to the south, pine flatwoods and sand live oak. East of Streams 6e, 7e, and 8e, IMC will reclaim a band 1500-3000 feet wide of hardwood conifer mixed, shrub and brushland, and sand live oak, between the no-mine area and the reclaimed improved pasture. This replaces a broader area of pine flatwoods, sand live oak, palmetto prairie, and xeric oak. From Stream 8e south, IMC will reclaim uplands on both sides of Horse Creek. At this point, the reclaimed area between the no-mine area and the reclaimed improved pastures measures about 1750 feet wide on the west of Horse Creek and about 2000 feet wide on the east of Horse Creek. Including the no-mine area in the center, these reclaimed areas average about one-mile wide south to the Lobes. From Stream 8e south to the East Lobe, IMC will reclaim largely hardwood conifer mixed. This replaces a large citrus grove, a larger area of improved pasture, and three smaller areas of palmetto prairie. On the west side of Horse Creek, the vegetation is more varied, both at present and as reclaimed. North of Stream 9w, IMC will reclaim a large palmetto prairie, a sizeable area of sand live oak, and a small area of temperate hardwood. South of Stream 9w, IMC will reclaim a large area of hardwood conifer mixed, areas of pine flatwoods, sand live oak, and palmetto prairie, and a small area of temperate hardwood. The uplands surrounding Stream 9w presently consist of improved pasture along the downstream half of the conveyance and palmetto prairie and sand live oak along and near its upstream reach. South of Stream 9w are a large area of improved pasture, pine flatwoods, and sand live oak and two smaller areas of palmetto prairie. The combination of no-mine area and reclaimed area, exclusive of reclaimed improved pasture, attains its greatest width--about 10,000 feet--from the western edge of the West Lobe to the eastern edge of the East Lobe, although this includes a 1000-foot strip of improved pasture between the bayhead in the East Lobe and sand live oak east of the bayhead. This area narrows to less than 6000 feet, just north of the Carlton cutout. South of this point, at which the reclaimed upland habitat will be found only on the west side of Horse Creek, the total width of the no-mine area and reclaimed area east of the reclaimed improved pasture tapers down from a little over 3000 feet to less than 1500 feet at the south end of OFG. Map I-2 also discloses the communities or habitats that will exist, post-reclamation, on OFG. These communities or habitats include those that will be in the no-mine area and those that will be reclaimed. At present, the West Lobe is mostly bayhead, wet prairie, and wetland forested mixed with smaller areas of hydric woodland pasture and shrub marsh. The West Lobe also includes upland communities of palmetto prairie, temperate hardwoods, and pine flatwoods. A large wet prairie extends from the northwest corner of the West Lobe. IMC will reclaim this wet prairie as improved pasture with a small strip of hardwood-conifer mixed. To the west of the West Lobe is a small strip of improved pasture and a large area of hardwood-conifer mixed. IMC will reclaim the improved pasture with hardwood-conifer mixed and sand live oak and most of the hardwood-conifer mixed with sand live oak. The areas surrounding the no-mine area associated with Stream 6w are currently improved pasture; IMC will reclaim these areas as hardwood-conifer mixed. The Central Lobe is mostly bayhead with small areas of wetland forested mixed and wet prairie. Palmetto prairie is also within the Central Lobe, nearer to Horse Creek. IMC will reclaim the areas around the Central Lobe and Stream 7w with hardwood-conifer mixed and some palmetto prairie. At present, the Central Lobe and Stream 7w are surrounded by palmetto prairie and some pine flatwoods with an area of sand live oak to the northwest of the Central Lobe. Unlike the no-mine areas forming the West and Central Lobes, which incorporate insubstantial areas of uplands, the no- mine area forming the East Lobe, like the no-mine area around Streams 6e, 7e, and 8e, incorporates a substantial area of uplands. Upgradient of the large bayhead forming the western half of the East Lobe is the 1000-foot strip of improved pasture, and upgradient of the pasture is a large sand live oak area. IMC will mine the eastern half of this sand live oak area and reclaim it as xeric oak. IMC will mine a small wet prairie presently at the southern tip of the bayhead in the East Lobe and reclaim the area as hardwood-conifer mixed. From the East Lobe south to the Carlton cutout, the reclaimed uplands will consist of a long area of temperate hardwoods abutting the no-mine area and a wider area of hardwood-conifer mixed abutting the temperate hardwoods. This area is presently improved pasture. On the west side of Horse Creek, south of the Carlton cutout, the area outside the no-mine area is presently improved pasture, except for a large palmetto prairie around and south of the headwater wetland of Stream 1w. Between the no-mine area and reclaimed improved pasture, IMC will reclaim palmetto prairie and a small area of hardwood-conifer mixed between the headwater wetlands of Streams 5w and 3w. Map I-3 is the Post Reclamation Soils. The legend classifies the soils by "[moderately well-drained]--greater than 30"; "[poorly drained]--greater than 30"; "[poorly drained]-- less than 30"; "[poorly drained]--stream"; "[very poorly drained]--muck"; and "[very poorly drained--mineral depression]." The references to "30" are the thicknesses, in inches, of sand tailings over overburden. Maps E-1 and E-2 are, respectively, Detailed Existing Soils and General Existing Soils. Comparisons between these two maps, on the one hand, and Map I-3, on the other hand, reveal specifics of the soil-reclamation process. The most distinctive feature of soils present at OFG is the thin band of Felda Fine Sand, Frequently Flooded, that runs down the center of OFG. As always, this reinforces the most distinctive feature of OFG--Horse Creek. However, the Felda Fine Sand extends beyond the Horse Creek floodplains to Stream 2e, the Stream 1e series, and the headwater wetland of Stream 5w. All of these soils are in the no-mine area except at the Stream 1e series and headwater wetland of Stream 5w. A closely related soil underlies the floodplain of the lower end of Stream 6w, which is also in the no-mine area. These are the only locations on OFG with these soils. The Felda Fine Sand is a "poorly drained soil having layers of loamy and/or spodic materials underlying sandy surfaces at least 20 inches thick on streams terraces and floodplains." Exclusive of the loamy or spodic materials, Map I-3 shows that IMC will reclaim the drainage characteristics of this type of soil at the Stream 1e series, but not at the headwater wetland of Stream 5w. IMC will also reclaim this type of soil at Streams 9w, 5w, 4w, 3w, 2w, and 1w. Another distinctive soil, pre-mining, is "moderately well to excessively drained soils having layers of loamy and/or spodic materials underlying sandy surfaces greater than 30 inches thick on gentle upland slopes and rises." Except for a couple of areas at the eastern end of the East Lobe, these soils presently are all outside of the no-mine area. IMC will reclaim these soils, generally in the areas previously described as sand live oak or xeric oak, as well as in a long band along the southern border of the slough associated with Stream 9w and a large area on the west sides of Sections 29 and 20. These areas correspond reasonably well in area and location to the existing soils with the same drainage characteristics. The two most poorly drained soils, pre-mining, are "very poorly drained to poorly drained mineral soils in depressions" and "very poorly drained soils with organic surfaces on low gradient seepage slopes." The latter are exclusively mucky soils, and the former range from mucky fine sand to fine sand. Most of the mucky soils are in the no-mine area, such as in each of the Lobes and along Streams 6e and 7e. IMC will not reclaim with similar soils the three areas with these mucky soils that are outside the no-mine area. The mucky fine soils are more widely distributed outside the no-mine area. The only significant areas of fine mucky sand presently at OFG underlie the Heart-Shaped Wetland, the headwater wetland of Stream 8e, and parts of the West Lobe. IMC will reclaim these mucky fine soils generally in accordance with their present areas and locations. The most significant reductions in area are from the slough of Stream 9w and the northeast corner of Section 4. Except for another category of poorly drained soil and four small areas of a somewhat poorly drained soil--all within the no-mine area--the remaining soil is "poorly drained soils having layers of loamy and/or spodic materials underlying sandy surfaces predominantly greater than 30 inches thick primarily on gently sloping uplands." The reclaimed counterpart of this poorly drained soil occupies the largest part of OFG, post-reclamation. This represents a substantial expansion of coverage of this type of soil, mostly at the expense of "poorly drained soils having layers of loamy and/or spodic materials underlying sand surfaces less than 30 inches thick primarily on gently sloping uplands." Map I-6 is the Post Reclamation Streams. These are addressed below. Figure 13A5-1 is the Identification of Created Wetlands. These wetlands have already been discussed. ERP Specific Condition 14 states that IMC shall reclaim wetlands in accordance with the schedule contained in Table 3AI-6A, which has been discussed. Specific Condition 14 lists various requirements applicable to the wetlands that IMC will create. ERP Specific Condition 14.a requires IMC to remove "suitable topsoil" prior to mining wetlands. IMC must time the clearing of topsoil donor sites and reclaiming of other sites so that it optimizes the opportunities for the direct transfer of topsoil, without any intervening storage time. If IMC must remove wetland topsoil more than six months before it will be spread at a reclamation site, IMC must store the topsoil in such a way as to minimize oxidation and colonization by nuisance species. Specific Condition 14.a encourages IMC to relocate any endangered or threatened plant species to appropriate mitigation sites. ERP Specific Condition 14.b requires IMC to grade reclaimed forested wetland areas after backfilling them with sand tailings and/or overburden and cap them with "several inches of wetland topsoil." IMC shall use direct transfer of topsoil and live materials, such as stumps, shrubs, and small trees, where feasible. However, Specific Condition 14.b states in boldface: "All reclaimed bay swamps shall receive several inches of muck directly transferred from forested wetlands approved for mining." Specific Condition 14.b provides that wetland topsoil should be reasonably free of nuisance and exotic plant species before application to wetland mitigation areas. ERP Specific Condition 14.c requires IMC to grade reclaimed herbaceous and shrub marsh wetland areas after backfilling them with sand tailings and/or overburden and cap them with "several inches of wetland topsoil when available." Specific Condition 14.c provides that wetland topsoil should be reasonably free of nuisance and exotic plant species before application to wetland mitigation areas. ERP Specific Condition 14.d requires IMC to design marshes and wet prairies "to maintain the diversity of community types that existed prior to mining in order to support a wide range of wildlife species including birds, reptiles, and amphibians." Specific Condition 14.d requires IMC to reclaim marshes and wet prairies with variations in hydroperiod and slope "to provide the greatest diversity of available habitat," with marsh hydroperiods ranging from ephemeral through permanently flooded. Specifying a range of slope values, Specific Condition 14.d adds that most marshes shall have slopes gradual enough to support wide transition zones with a diversity of vegetation. ERP Specific Condition 14.d provides that IMC shall construct ephemeral marshes and wet prairies as identified in Figure 13B-8, which, discussed above, addresses the status of individual wetlands as connected, isolated, or isolated and ephemeral. Although not incorporated into the ERP, Table 13A1-4 indicates that IMC will mine 27 of the 29 ephemeral wetlands or 22 of the 27 acres of ephemeral wetlands, but will reclaim 44 ephemeral wetlands totaling 101 acres, as indicated on Table 13A5-1 2AI discussed above. ERP Specific Condition 14.e provides that at least half of all herbaceous and shrub marshes shall be rim mulched with several inches of wet prairie, pine flatwoods, or palmetto prairie topsoil, and IMC shall use direct transfer, where feasible. ERP Specific Condition 14.f requires IMC to use "several inches" of wet prairie, hydric pine flatwoods, or hydric palmetto prairie topsoil for all wet prairie and hydric palmetto prairie areas, and IMC shall use direct transfer, where feasible. However, instead of topsoiling, IMC may use "[o]ther innovative methods" that are likely to produce the same diversity of wet prairie forbs and grasses. ERP Specific Condition 14.g requires IMC to construct, in forested wetlands, hummocks several inches above the wet-season high water line. The hummocks shall be 8-12 feet long and 3-6 feet wide. To increase habitat heterogeneity, IMC shall place brushpiles, logs, and tree stumps in the reclaimed area, which it shall roughly grade in some areas. ERP Specific Condition 14.h requires IMC to construct streams in accordance with the Stream Restoration Plan. Specific Condition 14.h also requires IMC to employ an experienced stream restoration scientist, subject to BMR approval, to provide project oversight and conduct regular inspections during construction and planting. First appearing in the January submittal, the Stream Restoration Plan is a design document that specifies, in detail, the physical characteristics of each reclaimed stream. For each reclaimed stream or stream segment, the Stream Restoration Plan provides detailed information of physical structure; channel planform or shape; hydrologic characteristics in terms of such factors as storage, conveyance, and attenuation; geomorphic characteristics such as the substrate and floodplain soil types and the effects of flows upon these materials; vegetation along the stream corridor, including the addition of snags and debris dams to re-create natural microhabitats; construction supervision; and monitoring. The Stream Restoration Plan focuses upon the design of the basin, reach, and microhabitat of each reclaimed stream. For microhabitat, the Stream Restoration Plan promises that: the ecology of most of the reaches is expected to be improved through reclamation. For all reaches except 1e and 3e (which are wholly situated in generally native land cover), the forested riparian zone will be substantially increased since improved pasture adjacent to the stream channels will [be] replaced with forested canopy. Acknowledging the importance of small headwater streams to the overall integrity of a large watershed, the Stream Restoration Plan recognizes the hydrological and biological functions of the tributaries and their riparian wetlands--namely, flood conveyance, attenuation, and storage and aquatic and wetland habitat. Among other things, the Stream Restoration Plan repeatedly stresses the importance of achieving "rapid closure of the riparian canopies." In addition to providing habitat, a riparian canopy reduces solar heating of the stream, thus lowering the water temperature and minimizing weedy vegetation on the stream banks. Among the effects of lowering the water temperature is lowering the amount of water lost to evaporation. The installation of trees along and sometimes within the reclaimed channels will facilitate the rapid development of root systems to stabilize the substrate and provide submerged root structure, which is an important microhabitat for macroinvertebrates and fish. Mature trees in the floodplain also provide additional attenuation. In addition to serving as a design document to govern the reclamation of mined streams on OFG, the Stream Restoration Plan is also a descriptive document, detailing the relevant characteristics of the streams presently at OFG. The Stream Restoration Plan uses several classifications that are useful in analyzing streams and their functions. These classifications include the Rosgen classification of stream shape (the Rosgen classification of bottom sediment is irrelevant because all existing and reclaimed streams at OFG have sandy bottoms), the Strahler convention of stream orders, the duration of flow, and the channel morphology. The Rosgen classification of stream shape divides the streams at OFG into type E and type C. Type E streams are well- incised and hydraulically efficient; their width-to-depth ratios are less than 12:1. Shallower and wider than type E streams, as these values relate to each other, type C streams at OFG are often associated with small wetland riparian zones and depressions, which are absent from type E streams at OFG. The Strahler convention classifies streams based on their relative location in the upstream order of conveyances with the most-upstream streams classified as first-order streams. Except for Stream 2e and the Stream 1e series downstream of Streams 1eb and 1ef, all of the tributary streams on OFG are first-order streams, meaning essentially that they are the most upstream channelized conveyance receiving runoff or groundwater flow. Streams 2e, 1ec, 1ed, and 1ee are second- order streams, meaning that they receive flow from at least two first-order streams. In terms of flow, perennial streams receive groundwater flow throughout the year in most years, ephemeral streams flow sporadically in response to rain and typically lack groundwater inputs, and intermittent streams flow during the wet season in response to groundwater and rain inputs and during the dry season sporadically in response to rain inputs only. Most, if not all, of the tributary streams on OFG are intermittent. However, almost all of the streams cease to flow due to low rainfall and overflow their banks due to very high rainfall. Even Horse Creek dried up at State Road 64 during the low-rain conditions in 2000. In terms of morphology, all streams at OFG are either in uninterrupted channels or interrupted channels. Interrupted channels mean that the stream passes through flow-through marshes and swamps. Describing the existing streams in a slightly larger setting, the Stream Restoration Plan divides them into three groups, based on channel morphology and the vegetation and land uses adjacent to the channel. First, Streams 3e and 1e series are "surrounded by native habitat used for low-intensity cattle grazing. These are type C streams with a more diffuse riparian canopy and associated wetlands along the stream channel." Second, the portions of Streams 5e, 1w, 2w, 3w, 4w, 5w, 7w, and 9w within the floodplain forest of Horse Creek are type E streams with oaks and palmettos along, and often crowding, the channel. Third, the portions of the same eight streams that are outside of the floodplain forest of Horse Creek are type E streams, devoid of riparian vegetation and degraded by agricultural land uses, such as improved pasture and cattle grazing. The Stream Restoration Plan describes the Stream 1e series as follows: Reach 1e provides drainage for a series of interconnected flow-through wetlands punctuated by five relatively short stream segments. The segments represent a total of some 2,039 linear feet of channel. They have shallow, sandy banks with little vegetation in the stream channel. A wide riparian canopy of slash pine, laurel oak, dahoon holly and wax myrtle is present along most of this reach. The palmetto edge of the floodplain varies in width, but is generally more than 100 feet from either bank, suggesting frequent inundation. The channel substrate is sandy except where near a swamp, where it becomes increasingly more organic. Each flow-through wetland occurs in shallow depressions which overflow into C-type channels that are typically several hundred feet long. Key components of this conveyance type include the lip elevation at which wetland flow enters the channel and the elevation at which the streams dissipate their discharge to the downstream flow- through wetland. Most of the stream segments in this conveyance system appear to be in good geomorphic condition. Most of these channels typically have wetland and/or upland hardwood trees in the riparian zone with little understory. The Stream Restoration Plan reports that the channel of Stream 3e is in good geomorphic condition. The upper part of the channel flows through a scattered open canopy of trees with herbaceous cover in the riparian zone. The lower part of the channel mostly flows through treeless banks lined with palmettos. The channel has vegetation in it where it is exposed to sunlight. In other respects, Stream 3e is like Stream 1e series, except that the channel is uninterrupted and shorter. The length of Stream 3e is 611-630 feet. Stream 1eb is 486 feet, Stream 1ef is 223 feet, Stream 1ec is 315 feet, Stream 1ed is 283 feet, and Stream 1ee is 732 feet. The 2039-foot length of the Stream 1e series is exclusive of the system's headwater and flow-through wetlands. The Stream 1e series has the most linear feet of any tributary stream on OFG. In addition to the Stream 1e series and Stream 3e, the only other stream on the east side of Horse Creek to be mined is Stream 5e, which is an agriculturally disturbed stream with a narrow riparian canopy. The Stream Restoration Plan states that the lower portion of Stream 5e, which is within OFG, is in better condition than the upper portion, which is frequented by cattle and leads to a cattle pond and agriculturally altered wetland. However, in contrast to the Stream 1e series and Streams 6e, 7e, and 8e, Stream 5e is isolated in a vast monocommunity of improved pasture. The streams on the west side of Horse Creek have all been impacted by agricultural practices, mostly cattle ranching, ditching streams, sloughs, and other wetlands, and excavating cattle ponds in wetlands. The only streams entirely in the no- mine area on the west side of Horse Creek are Streams 8w and 6w, which are part of the Central and West Lobes, respectively. Relative to their surrounding communities, the streams on the west side of Horse Creek fall into three groups. Streams 6w and 8w are integrated into diverse communities of uplands and wetlands. Like Stream 5e, Streams 5w, 4w, 3w, and 2w are lonely departures from the monocommunity of improved pasture and, thus, attractors of thirsty or hot cattle. All of these streams have been impacted, to varying degrees, by ditching, which, with cattle disturbances, has led to unstable banks and erosion. Functionally, Streams 9w, 7w, and 1w are between these two groups. As a stream, Stream 9w is surrounded by improved pasture; however, it drains a large wet prairie surrounded by large areas of palmetto prairie to the south and west and sand live oak to the north and east. Prior to agricultural disturbance, Stream 9w was much higher functioning, at least with respect to flood conveyance, attenuation, and storage. At one time, this stream led upgradient to a long slough. After the slough was ditched to hasten drainage, the channel of Stream 9w suffered from excessive hydraulic forces, resulting in bank instability and a curious channel formation that fits the type E stream, even though the valley slope is consistent with other type C streams at OFG. Stream 9w is the second-shortest stream on OFG at 472 feet. Draining the smallest area of all tributaries on OFG (30 acres), Stream 7w lies between a large palmetto prairie to the north and improved pasture to the south. Stream 7w is the shortest stream on OFG at 456 feet. Stream 7w's upper section is characterized by unstable banks vegetated by pasture grasses. Stream 1w runs from Horse Creek through improved pasture, but enters a large palmetto prairie before draining a wetland that includes a relatively small bayhead. The upper half and extreme lower portions are in good condition with appropriate vegetation, but the channel is eroded in areas where it runs through pasture. IMC will reclaim the headwater wetland of Stream 1w with a large bayhead. ERP Specific Condition 14.i requires IMC to survey the final contours of each mitigation wetland to the precision of a one-foot contour. Within 60 days of final grading, IMC shall submit to BMR, for its approval, a topographic map and representative cross sections for each wetland and extending at least 200 feet into the adjacent uplands. IMC must also submit surveyed profiles and cross sections for all reclaimed streams. All topographic maps must meet the minimum technical standards of Chapter 472, Florida Statutes. ERP Specific Condition 14.j states that IMC shall assess the hydrology of the modeled wetlands through the installation of monitoring wells and staff gauges at mutually agreed-upon sites in these reclaimed wetlands. For at least two years after the final contouring of each wetland, IMC shall monitor the hydrology for the parameters listed in Table MR-2, which is described below. IMC shall submit the analysis to BMR within 30 days of its completion. If BMR does not approve the hydrology, IMC shall have 60 days to submit a remedial plan. ERP Specific Condition 14.k requires that freshwater marsh and ephemeral marsh vegetation shall develop from direct placement of donor topsoil or planting of herbaceous marsh species in the densities and numbers specified in the Freshwater Marsh and Wet Prairie/Ephemeral Marsh planting tables, so as to meet the requirements of ERP Specific Condition 16. Both tables require plantings on three-foot centers, or 4840 plants per acre, and specify suitable water levels for each species. The Freshwater Marsh planting table lists 22 approved species, and the Wet Prairie/Ephemeral Marsh planting table lists 35 approved species. ERP Specific Condition 14.l requires IMC to plant the uplands surrounding wet prairies with collected native grass seed, such as creeping bluestem, sand cordgrass, blue maidencane, bluestem, lovegrass, and eastern gamma grass, to prevent invasion by non-native or range grasses. ERP Specific Condition 14.m provides that IMC shall develop shrub marsh vegetation by directly placing donor topsoil at the location of the reclaimed shrub marsh and planting herbaceous and shrub marsh species in the densities and numbers specified in the Shrub Marsh planting table, so as to meet the requirements of ERP Specific Condition 16. The Shrub Marsh planting table requires IMC to plant herbaceous species on three-foot centers, or 4840 plants per acre, and shrub species at an average density of 900 plants per acre. The planting table lists 18 approved species and requires IMC to plant at least five different shrub species. The planting table also specifies suitable water levels. ERP Specific Condition 14.n provides that IMC shall plant forested wetlands in the densities, species richness, and dominance specified in the Bay swamp/Gumswamp/Hydric Oak Forest/Wet Pine Flatwoods/Mixed Wetland Hardwood/Mixed Forest Swamp, "as appropriate for each community type" to meet the requirements of ERP Specific Condition 16. IMC shall plant appropriate species based on the design elevations, hydrology monitoring, and mitigation goals. ERP Specific Condition 14.o provides that IMC shall plant shade-tolerant herbaceous species after establishing suitable shade, by year 7, in hardwood swamps, mixed forest swamps, and bay and gum swamps. Specific Condition 14.o states: "At least 5 of the species listed in the Tables in n above and others like goldenclub . . . and swamp lily . . . shall be planted." The items listed in Specific Condition 14.n, however, are communities, not species. ERP Specific Condition 15 requires IMC to implement a monitoring and maintenance program to promote the survivorship and growth of desirable species in all mitigation areas. ERP Specific Condition 15.a requires IMC to conduct "quarterly or semi-annual" inspections of wetlands for nuisance and exotic species. IMC shall control these species by herbicide, fire, hydrological, or mechanical means "to limit cover of nuisance species to less than ten (10) percent and to remove exotic species when present in each created wetland." IMC must annually use manual or chemical treatment of nuisance and exotic species when their cover in any area of at least one acre is greater than ten percent or any exotic species are present. IMC must use manual or chemical treatment if cogongrass covers more than five percent within 300 feet of any reclaimed wetland. ERP Specific Condition 15.b allows IMC to control water levels with outflow control structures and pumps, as needed to enhance the survivorship and growth of sensitive taxa. However, IMC must remove all water management structures at least two years prior to requesting release. ERP Specific Condition 15.c requires IMC to make supplemental tree and shrub plantings, pursuant to Specific Condition 14, when tree/shrub densities fall below those required in ERP Specific Condition 16. Specific Condition 15.d requires IMC to make supplemental herbaceous plantings, pursuant to ERP Specific Condition 14, when cover by a "diversity of non- nuisance, non-exotic wetland species as listed in Chapter 62-340.450, F.A.C.," falls below that required in ERP Specific Condition 16. ERP Specific Condition 16 provides the conditions for DEP to release IMC of further obligation for reclaimed wetlands. DEP shall release the 105 acres of reclaimed forested wetlands and 217 acres of herbaceous wetlands when IMC has constructed them in accordance with the ERP requirements; IMC has not intervened, for two consecutive years (absent BMR approval), by irrigating, dewatering, or replanting desirable vegetation; and the remaining requirements of ERP Specific Condition 16 have been met. IMC must indicate in its annual narrative, which is required by Specific Condition 5, the start date for the non- intervention period. ERP Specific Condition 16.A requires that the water quality meet Class III standards, as described in Florida Administrative Code Chapter 62-302. ERP Specific Condition 16.B addresses water quantity. ERP Specific Condition 16.B.1 requires each created wetland to have hydroperiods and inundation depths sufficient to support wetland vegetation and within the range of conditions occurring in the reference wetlands of the same community for the same period, based on the monitoring data developed in accordance with ERP Specific Condition 14.j. Tributary wetlands must have seasonal flow patterns similar to specified reference wetlands for the same period. ERP Specific Condition 16.B.2 states that IMC modeled 24 representative reclaimed wetlands that IMC has modeled during the application process to predict subsurface conditions after excavation and backfilling. Figure 13-3 depicts these modeled wetlands, which are within 13 wetland complexes, and the proposed transects. All of the modeling transects are aligned east-west, which is the direction of groundflow. As discussed in detail below, the primary hydrological model used by Dr. Garlanger requires an input for the length of the upland in terms of the distance from the basin divide to the riparian wetland. Therefore, the transects probably must run in the direction of groundwater flow. Absent an ability to model the hydroperiod and inundation depth of a wetland across a sand tailings valley and cast overburden plateau--i.e., in a north-south direction-- multiple east-west transects in wetlands with long north-south dimensions would better reveal whether the wetland design were adequately accounting for the alternating pattern of sand tailings valleys and cast overburden plateaus. For all the areas for which Map H-1 provides probable orientations of spoil piles--basically, for present purposes, everywhere but Section 4--the spoil piles are oriented in the same alignment as the transects, so the transects will not cross the sand tailing valleys/cast overburden peaks. In other words, each of the transects will run along the portion of each wetland for which the relative depths of sand tailings and cast overburden remain constant, avoiding the potentially more problematic situation of alternating rows of sand tailing valley and cast overburden peak. As noted below, the north-south dimension of W039 assures that one cast overburden spoil pile and part of another will underlie W039. The north-south dimensions of W003 and E046/E047 also are long enough to guarantee significant alterations in geology. ERP Specific Condition 16.B.2 requires that, prior to the construction of the modeled 24 wetlands, IMC shall reassess and, if necessary, modify their design. The modifications shall be based on the targeted hydroperiods and inundation depths set forth in Table 1, which is described below, and updated analysis from an "integrated surface and ground water model that has been calibrated to actual field conditions at the location of the wetland to be constructed." Lastly, ERP Specific Condition 16.B.2 requires IMC to use a similarly calibrated model to design the other reclaimed wetland, so that they achieve the targeted hydroperiods and inundation depths set forth in Table 1. For the 24 modeled wetlands, Table 1 identifies eight types of wetland community, prescribes hydroperiods and inundation depths for each wetland habitat, and projects a hydroperiod for each of the 24 modeled wetlands. As amended at the hearing for bay swamp hydroperiods, the hydroperiods and inundation depths for the wetland communities are: bay swamps-- 8-11 months with inundation depths of 0-6 inches; gum swamps-- 3-12 months with inundation depths of 0-12 inches; mixed wetland hardwoods and wetland forested mix--3-9 months with inundation depths of 0-6 inches; hydric pine flatwoods--1.5-4.5 months with inundation depths of 0-6 inches; freshwater marshes--7-12 months with inundation depths of 6-30 inches; wet prairies--2-8 months with inundation depths of 0-6 inches; and shrub marshes--7-12 months with inundation depths of 6-24 inches. The 24 reclaimed wetlands to be modeled include three bay swamps: W039, which is the headwater wetland of Stream 1w; E008, which is a small part of the wetland into which Streams 1eb and 1ef drain; and E063, which is a small bay swamp in the middle of Stream 5e. The only other bay swamps to be reclaimed are E007, which is a small part of the wetland into which Stream 1ec drains, and W036, which is in the center of Section 19 and drains offsite into West Fork. The only other modeled wetlands that are part of the riparian wetlands of Stream 1e series are E007 and E009, which are near E008 and are the only hydric pine flatwoods to be modeled. The only other hydric pine flatwoods to be reclaimed is E015, which is also part of the riparian wetlands of Stream 1e series. Other modeled wetlands of particular importance are W003, which will be a large wet prairie wetland serving as the headwater wetland of Stream 9w; W031, which will be the freshwater marsh serving as the headwater wetland of Stream 3w; E018, E046, and E057, which are wet prairie fringes; E018, E042, E046, and E057, which are ephemeral wetlands (E042 is the only modeled ephemeral wet prairie that is not a fringe wetland); and all of the connected wetlands of Streams 3e and 3e?: E024, which is a wetland forested mix that is the riparian wetland along Stream 3e; E023, which is a freshwater marsh immediately upstream of E024; E022, which is a mixed wetland hardwoods joining the upstream side of E023; E018, which is a wet prairie fringing the headwater wetland of Stream 3e?; E019, which is a shrub marsh (the only modeled shrub marsh) fringed by E018; and E020, which is a freshwater marsh joining E019 and also fringed by E018. ERP Specific Condition 16.B.3 states the IMC shall monitor the 24 modeled wetlands, as prescribed by ERP Monitoring Required Section D and Table MR-2, which are discussed below. ERP Specific Condition 16.B.4 requires that the ephemeral wetlands shall remain inundated no more than eight months per year during a normal water year, which is between the 20th and 80th percentiles of historical record in terms of total rainfall and major storm occurrence. ERP Specific Conditions 16.C.1 and 2 apply to all mitigation areas within the scope of the ERP. Specific Condition 16.C.1 requires that non-nuisance, non-exotic wetland species listed in Florida Administrative Code Rule 62-340.450 cover at least 80 percent of the groundcover or attain the range of values documented in specific reference wetlands of the target community. Desirable groundcover plant species must be reproducing naturally. ERP Specific Condition 16.C.2 provides that nuisance vegetation species, such as cattail, primrose willow, and climbing hemp vine, shall cover less than 10 percent of the total wetland area. Invasive exotic species, such as melaleuca, Chinese tallow, and Brazilian pepper, shall not be considered as an acceptable component of the vegetative community. For herbaceous marshes, ERP Specific Condition 16.C requires that native species typical of the reference marshes dominate the cover and that they be distributed in zonation patterns similar to reference marshes. Species richness and dominance regimes shall be within the range of values documented within the reference marshes. For wet prairies, ERP Specific Condition 16.C requires that native species typical of the reference wet prairies dominate the cover. Species richness and dominance regimes shall be within the range of values documented within the reference wet prairies. Range grasses, such as bahiagrass and Bermuda grass, shall cover, in total, less than 10 percent of the wet prairie. For shrub marshes, ERP Specific Condition 16.C requires that native species typical of the reference shrub marshes dominate the cover. Carolina willow and wax myrtle shall cover, in total, less than 30 percent of the marsh. For all forested wetlands, ERP Specific Condition provides that the forested canopy shall have an average of at least 400 live trees per acre that are at least 12 feet tall, except for cabbage palms, which shall have a leaf, including the stalk, that is at least three feet long. In the alternative, the forested canopy shall meet or exceed the range of canopy and sub-canopy tree densities in specified reference wetlands. No area greater than an acre shall have less than 200 trees per acre. Hydric pine flatwoods shall average 50 trees per acre. For all forested wetlands, ERP Specific Condition provides that the shrub layer shall average at least 100 shrubs per acre or shall meet or exceed the range of shrub densities in specified reference wetlands. Early successional species, such as Carolina willow, saltbush, and wax myrtle, do not count in meeting this density requirement, but the monitoring reports shall include such species. Hydric pine flatwoods shall have an average density of 350 shrubs per acre, and the primary species shall be typical of hydric pine flatwoods, such as saw palmetto, gallberry, and fetterbush. For all forested wetlands, ERP Specific Condition states that the canopy and shrub strata shall each have the species richness values and dominance regimes within the range of values in specified reference wetlands/floodplains of the target community. Canopy and shrub measurements are limited to those indigenous species that will contribute to the appropriate strata of the mature forested wetlands/floodplains. Up to half of the trees and shrubs in the upper transitional zone may consist of appropriate upland and facultative species, as found in specified reference wetlands. Desirable canopy and shrub species shall be reproducing naturally. For all forested wetlands, ERP Specific Condition provides that herbaceous vegetation shall have the species richness values and dominance regimes within the range of values in specified reference wetlands/floodplains of the target community. In making this evaluation, DEP shall consider the relative age of the mitigation site, as compared to specified reference wetlands. ERP Specific Condition 16.D.1 requires that all stream banks be stable, subject to normal erosion and deposition zones, as evidenced by the conformance of the stream with the applicable Rosgen type C or E, as described in the appropriate reference streams. ERP Specific Condition 16.D.2 requires that the physical characteristics of the reclaimed stream conform to its design. ERP Specific Condition 16.D.3 requires that tree roots, log jams, snags, and other instream structure shall be present at desirable intervals along the reclaimed stream. ERP Specific Condition 16.D.4 provides that species diversity and richness of the macroinvertebrate community shall be within the range of values documented in the reference streams or reported values of similar streams systems in central Florida. Also, all functional feeding guilds of macroinvertebrates found in the reference streams shall be present in the reclaimed streams. In the alternative, IMC may show that the reclaimed stream has met the minimum thresholds for the "good" classification in DEP's Stream Condition Index for macroinvertebrates and habitat quality. ERP Specific Condition 16.E provides that, throughout OFG, at least 105 acres of reclaimed forested wetlands and 217 acres of reclaimed herbaceous wetlands shall be determined to be wetlands or other surface waters. IMC shall achieve the minimum acreage for each wetland, as indicated on Map I-2 and associated figures and tables. However, IMC may make minor changes in the size, shape, or location of individual reclaimed wetlands, subject to BMR's approval. ERP Specific Condition 17 provides that DEP shall release IMC from further obligation regarding mitigation when ERP Specific Condition 16 has been met. IMC initiates the release procedure by notifying DEP that IMC believes the mitigation is ready for release, but this notice may not be earlier than two years after the completion of mitigation. DEP must respond within 120 days. ERP Specific Condition 17.d provides: "[DEP] may release the mitigation wetlands based on a visual evaluation, notwithstanding that all the requirements of Specific Condition 16 have not been met." ERP Specific Condition 18 applies to the surface water management system. The system must conform to the plans, specifications, and performance criteria approved by the ERP. ERP Specific Condition 19 requires IMC clearly to identify all no-mine areas in the field within two years of the issuance of the ERP. ERP Specific Condition 20 states that BMR will review the ERP at the end of the first five-year term after its issuance and at the end of each succeeding five-year term, if any. The purpose of the review is to determine compliance with general and specific conditions, including monitoring requirements. BMR staff shall quarterly inspect the mine for compliance with these requirements. ERP Specific Condition 21 requires IMC to provide a phased Conservation Easement, in favor of DEP, on 525 acres of OFG, as depicted on Figure F-6. Figure F-6 shows two easement areas. Phase A, which is 372 acres, corresponds to the 100-year floodplain of Horse Creek. Phase A is in the no-mine area. Phase B, which is 153 acres, is a wider band running along both banks of the northernmost 1 1/2 miles of Horse Creek and mostly on only the west bank for the southernmost 2 miles of Horse Creek. Phase B consists of part of the reclaimed area. The corridor covered by both phases of the Conservation Easement is generally not wider than 1000 feet and thus does not capture all of the non-improved pasture upland communities reclaimed on either side of Horse Creek and described above. IMC is required to grant the Conservation Easement on the Phase A lands within six months of the issuance of the ERP. IMC is required to grant the Conservation Easement on the Phase B lands within six months of the release by DEP of IMC from further obligations regarding reclamation and mitigation. ERP Specific Condition 21 incorporates the Conservation Easement and Easement Management Plan. The Conservation Easement implicitly acknowledges the fact that IMC is contractually obligated to convey OFG back to the Carlton- Smith family, after IMC has been released from further obligations regarding reclamation and mitigation. Thus, post- mining, OFG will return to its historic agricultural uses-- mostly, cattle ranching. The restrictions and encumbrances included in the Conservation Easement are designed to provide some protection to the wetlands, streams, and uplands within the Phase A and Phase B areas. Granted to the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, for which DEP serves as an agent, the Conservation Easement allows IMC and its successors, including the Carlton-Smith family, to use the encumbered property for cattle ranching, but only to the extent consistent with "sustainable native range management practices." These sustainable native range management practices require, among other things, the natural renewal of the grazing capacity of the land by allowing native grasses and other native forage species to regenerate. The Easement Management Plan contemplates prescribed burns of portions of the corridor. The Conservation Easement also allows IMC and its successors, upon obtaining the necessary permits, to construct a commodious 200-foot wide accessway across the encumbered property for a road, pipelines, draglines, and/or utilities. ERP Specific Condition 22 requires IMC to enhance 80 acres of existing pastureland within several areas of the Horse Creek floodplain, as indicated on Figure F-5, which is Habitat Enhancements. Most of the depicted enhancement areas are on OFG, but two of them are a short distance from OFG. ERP Specific Condition 22 requires IMC to plant 100 longleaf pines and/or oaks per acre within several sites, covering 80 acres of existing pastureland, adjacent to the 100-year floodplain of Horse Creek. Most of the sites are on the west bank of Horse Creek, mostly south of the Lobes, but a couple of sites are on the east bank in the vicinity of the East Lobe. ERP Specific Condition 23 requires that IMC plant these areas within one year of the issuance of the ERP and that the overall survival rate be at least 80 percent, as of the time of the release of the last mitigation parcel. ERP Specific Condition 23 requires IMC to enhance existing xeric and scrub habitats within areas designated as ACI (Area of Conservation Interest)-2, ACI-4, and ACI-6, as depicted on Figure F-5. Specific Condition 23 states that IMC shall enhance the wildlife habitat of these areas by performing controlled burns, cutting overgrown trees, planting desirable species, and controlling nuisance and exotic species. Specific Condition 23 obligates IMC to complete these enhancements within three years of the issuance of the ERP. ACI-2 is about 1 1/2 miles west-southwest of the southern end of OFG, between State Road 64 and the West Fork. ACI-2 consists of about 60 acres of overgrown xeric habitat, featuring 40 acres of sand scrub, predominantly sand live oak. Gopher tortoises occupy ACI-2 at a density of about 1.6 reptiles per acre. Florida mice occupy ACI-2 at a density of 0.4 rodents per acre, meaning that only 15-25 Florida mice may occupy ACI-2. By fence-posting overgrown sand pine and sand live oak and conducting a prescribed burn, IMC will reduce the heavy canopy existing on ACI-2 and enhance the suitability of ACI-2 for gopher tortoises and Florida mice. IMC will also apply herbicides to nuisance exotic species, such as bahiagrass, after which IMC will direct seed the flatwoods on the site with suitable vegetative species. Following this work, IMC may relocate Florida mice from OFG to ACI-2, upon approval from the FWC. ACI-6 is about one mile east of the southern end of OFG. ACI-6 consists of about 421 acres of a mixture of open land and overgrown oak scrub. Gopher tortoises occupy ACI-6 at densities ranging from 0.7 to 1.8 animals per acre. After fence-posting overgrown oaks and sand pine, conducting prescribed burns, installing fencing to exclude cattle and feral hogs, applying herbicide to kill exotic species, and direct seeding appropriate vegetation, IMC may relocate Florida mice from OFG to ACI-6, upon approval from FWC. ACI-4 consists of about 82 acres at the eastern end of the East Lobe and is within the no-mine area. The western end of ACI-4 slopes to the west through a bahia pasture before it enters a large bay swamp at the western end of the East Lobe. This area has been impacted by partial clearing and the depositing of animal carcasses--the latter practice yielding the name assigned to this area, the "boneyard" scrub. ACI-4 is dominated by mature scrub oaks. Gopher tortoises occupy ACI-4 at the rate of 0.85 terrestrial turtles per acre, and gopher frogs frequent the mouths of tortoise burrows at the site, although no signs of Florida mice exist. After conducting enhancement activities similar to those to be conducted on the other ACIs, IMC intends to create and maintain more suitable habitat for Florida mice. Specific Condition 23 states that IMC shall enhance 25 acres of pasture on ACI-4 by planting 100 longleaf pines and/or oak trees, and IMC shall manage these areas to achieve an overall survival rate of 80 percent through release of the final reclamation parcel. ERP Specific Condition 24 notes that IMC has committed to initiate the management and evaluation of amphibians, including the Florida gopher frog, and shall adhere to the management plans outlined in the IMC Minewide Gopher Tortoise and Burrow Conceptual Management Plan that FWC has examined, but not yet approved. IMC shall expend at least $30,000 to compare amphibian use of reclaimed and unmined wetlands. IMC shall include progress reports as to this study with its annual narrative reports required under Specific Condition 4. ERP Specific Condition 25 incorporates Tables 2AI-1 and 2AI-2 to provide assurance that IMC has sufficient sand tailings for the timely reclamation of wetlands contemplated in the ERP. Table 2AI-1 is the IMC Overall Sand Balance. Table 2AI-2 is the [OFG] Sand Balance. Table 2AI-1 shows the sand tailings production of IMC's Four Corners and Ft. Green mines from 2004-2014 and assumes an initial mining year of 2006 for OFG. For each of these 11 years, Four Corners produces 27,000,000 tons of sand tailings. For the first seven of these years, Ft. Green produces 17,000,000 tons of sand tailings. During these 11 years, IMC needs anywhere from 13,300,000 to 54,900,000 tons of sand tailings to meet all of its reclamation obligations. The closest that IMC will come to exhausting its sand tailings stockpile will be in year 6 of the OFG mining operation (2011, if OFG mining starts in 2006). For this and the following year, the sand tailings stockpile will total 300,000 tons. By this time, IMC's requirements for sand tailings begin to taper off, so that, by the final year on the schedule (2014), the sand tailings stockpile increases to 20,600,000 tons. Table 2AI-2 shows that IMC can meet its reclamation obligations for the Ft. Green Mine and OFG without using any stockpiled sand tailings. The next section of the ERP is Monitoring Required. The designations for this section start with a letter. As its name suggests, ERP Monitoring Required describes the monitoring program. The presence of monitoring does not imply the presence of standards or criteria applicable to what is monitored or the presence of a remedy or sanction for noncompliance with any standard or criterion. The existence of this section of the ERP does not mean that other sections of the ERP may impose monitoring requirements, applicable standards and criteria, and remedies or sanctions for noncompliance. ERP Monitoring Required A.1 requires IMC to submit annual narrative reports to BMR detailing the progress of the restoration program identified in ERP Specific Condition 4. As required in ERP Specific Condition 5, IMC shall submit to BMR hydrology reports annually and vegetation reports annually for the first three years and every other year thereafter, until release. At least 60 days prior to sampling, ERP Monitoring Required A.2 requires IMC to submit, for agency approval, vegetation, hydrology, and macroinvertebrate monitoring plans detailing sampling techniques and locations. ERP Monitoring Required A.3 requires IMC to include in its annual hydrology reports the daily rainfall amounts for the Ft. Green and OFG gauges shown on Map D-4. ERP Monitoring Required A.4 states that, if BMR determines that restoration efforts are not trending toward achievement of the release conditions set forth in ERP Specific Condition 16, IMC shall have 30 days from notification to submit proposed corrective actions. IMC shall implement corrective actions within 90 days of their approval. ERP Monitoring Required B states that data compiled in the CDA will be the primary source of reference wetland information. IMC shall then collect additional stage and hydroperiod data from the modeled wetlands. Within one year of the issuance of the ERP, IMC shall submit to BMR, for approval, a proposed sampling plan, including locations, frequencies, and vegetation, hydrology, and macroinvertebrate sampling methods. ERP Monitoring Required B provides that IMC shall select several wetlands of each community and submit them to BMR for approval. It appears that this process has already been completed, and DEP should updated ERP Monitoring Required B by incorporating into the ERP Figure RF-1, which, although not presently incorporated into the ERP, identifies 26 reference wetlands on OFG and nine reference wetlands on the original Ona Mine to the east of OFG. These reference wetlands include the most important components of the Lobes, the Heart-Shaped Wetland, Stream 2e's riparian wetlands, several wetlands in the Stream 1e series, the headwater wetland of Stream 3e, isolated wetlands south and east of the headwater wetland of Stream 3e, parts of the headwater wetland of Stream 1w, and the riparian and headwater wetlands of Stream 8e. As noted below, the riparian and headwater wetlands of Stream 8e, which are selected as reference wetlands, are moderate functioning, but the riparian and headwater wetlands of Stream 7e, which are not selected as reference wetlands, are high and very high functioning. ERP Monitoring Required C is Compliance Monitoring. Monitoring Required C.1 provides that IMC shall submit water quality data with the annual narrative reports submitted pursuant to ERP Specific Condition 7. All monitoring reports must include specified information, such as the dates of sampling and analysis and a map showing sampling locations. ERP Monitoring Required C.2 states that IMC shall submit hydrology data with its annual narrative reports. ERP Monitoring Required C.3 states that IMC shall monitor water levels in wetlands in no-mine areas in accordance with Table MR-1, which is described below. ERP Monitoring Required C.4 notes that IMC shall measure and report surface water flows in accordance with ERP Specific Condition 10. IMC must include in its reports to BMR all U.S. Geologic Service data collected at State Road 64 and State Road 72, which is south of State Road 64, and rainfall data collected by the U.S. Geologic Service, Southwest Florida Water Management District, and IMC. The annual hydrographs for Horse Creek at State Road 64 and State Road 72 "should" be similar. IMC must obtain and report hydrological data from 30 days after the issuance of the ERP until three years after the hydrological reconnection of the last reclaimed area upstream of a water level monitoring location. Within 60 days of the receipt of such data, BMR shall notify IMC of any changes to mining or reclamation that are necessary, and IMC shall have 60 days to respond to this notice. ERP Monitoring Required C.5 grants IMC a 50-meter temporary mixing zone adjacent to construction and in waters of the state; provided, however, this mixing zone is in effect only during the construction of the pipeline crossing just downstream of the Heart-Shaped Wetland. IMC must halt construction if monitoring reveals that turbidity at the site is more than 29 NTUs above upstream locations. ERP Monitoring Required C.6 states: "Compliance Monitoring Summary--See Table MR-1." Table MR-1 is discussed below, in connection with Table MR-2. ERP Monitoring Required D is Release Criteria Monitoring. Applying to vegetation, Monitoring Required D.1 provides that IMC shall conduct all monitoring of herbaceous vegetation during or immediately after the summer growing season. Monitoring Required D.1 requires the reports to include a description of collection methods and location maps. IMC must report data separately for individual wetlands. IMC must report separate density and cover information for trees, shrubs, and groundcover, as well as information about any supplemental planting. Applying to water quantity, ERP Monitoring Required D.2 provides that IMC shall submit water quantity data with its annual narrative reports, as required in ERP Specific Condition 4. IMC shall collect onsite daily rainfall data at OFG. ERP Monitoring Required D.3 requires: "Soils, macroinvertebrates and stream channel integrity/morphology shall be monitored as described in Table MR-2." ERP Monitoring Required D.4 states: "Release Monitoring Criteria Summary--See Table MR-2." Tables MR-1 and MR-2 refer to the monitoring required for compliance and release, respectively. The identification of these tables as "summaries" and the vague references to them in ERP Monitoring Required C.6 and D.4 suggest that the tables do not contain any performance standards and may imply that, except for the asterisked notes in Table MR-1, they summarize all of the performance standards and criteria contained in the ERP. If summaries, the tables should not introduce new elements, but they do just that with respect to the methods, sampling schemes, and frequency of monitoring. For water quantity monitoring, for instance, Table MR-2's promise of weekly readings of monitoring wells and piezometers for part of the year conflicts with the monthly reading required in ERP Specific Condition 10.b. If summaries of performance standards and criteria, the tables should capture all of the compliance and release criteria, but they do not. For water quality, for example, Table MR-2, which is limited to five parameters, potentially conflicts with ERP Specific Condition 16.A's broad assurance of compliance with Class III water quality standards, which encompass a broad range of parameters, including iron. For water quantity, Table MR-2 also omits the enforceable streamflow criteria of ERP Specific Condition 10.b. For soil, Table MR-2 includes one parameter--litter accumulation--for which no corresponding criterion exists and includes substrate-- for which important criteria exist as to the depths of sand tailings, topsoil, green manure, and muck--but omits any release criteria. Addressing two of the most important parts of the ERP--monitoring and performance criteria--these tables must be interpreted as subordinate to the remainder of the ERP, so that if they conflict with another ERP provision, the other ERP provision controls, but if they add a requirement not elsewhere found in the ERP, the requirement applies to the proposed activities. Table MR-1 is the Compliance Monitoring Criteria Summary. Table MR-1 identifies two monitoring parameters: water quality and water quantity. Asterisked notes state that the Table MR-1 requirements for water quality are in addition to those set forth in Specific Condition 7, which are discussed above, and the Table MR-1 requirements for water quantity are in addition to those set forth in Specific Condition 10.b, which are discussed above. For water quality, Table MR-1 addresses only turbidity. The compliance criterion is the Class III standard. The "proposed methods" are for IMC to monitor water, at mid- depth, 50 meters upstream and downstream from the point of severance and reconnection of each wetland. The frequency of monitoring is daily during severance or reconnection or during pipeline corridor construction or removal. The duration of monitoring is at least one wet season prior to mining, during mining, and through contouring. For water quantity, Table MR-1 addresses water levels, flow, hydrographs, soil moisture, and plant stress. The compliance criteria are soils sufficiently moist to support wetland vegetation and prevent oxidation and water levels in recharge ditches sufficient to simulate normal seasonal fluctuations of water in adjacent wetlands and other surface waters. The "proposed methods" are for IMC to install staff gauges, monitoring wells, piezometers, and flow meters in recharge ditches and wetlands in the no-mine area and at the point that the 100-year floodplain of Horse Creek intercepts the unmined portions of Streams 2e, 6e, 7e, 8e, 9e, 6w, and 8w. The frequency of monitoring is to check rainfall and recharge ditches daily, staff gauges in streams "continuously," and monitoring wells and piezometers weekly. The duration of monitoring is at least one wet season prior to mining, during mining, and through contouring. Table MR-2 is the Release Monitoring Criteria Summary. Table MR-2 identifies five monitoring parameters: water quality, water quantity, stream channel integrity and morphology, soils, and vegetation. For water quality, Table MR-2 addresses dissolved oxygen, turbidity, temperature, pH, conductivity, and, for all streams, all of the parameters in ERP Specific Condition 7.a. The compliance criteria are Class III standards. The locations are at or near the connection of wetlands in the no-mine area and at or near vegetative transects in streams and representative wetlands. The frequency is monthly from May to October prior to the reconnection to wetlands in the no-mine area and monthly from May through October of the year prior to the release request. The duration of monitoring is at least two years after the completion of contouring. For water quantity, Table MR-2 addresses water levels, flow, hydroperiod, rainfall, and hydrographs. The release criteria are values within the range of values documented in specified reference wetlands for each community type and, for hydroperiods and water levels, within the range of values predicted by modeling. The "proposed methods" are the same instruments identified for water quantity in Table MR-1. The locations for sampling are at or near the connection to wetlands in the no-mine area and at representative locations, including the deepest depths, of several representative wetlands of each community type. The frequency of monitoring is to check rainfall daily, staff gauges in streams "continuously," monitoring wells and piezometers weekly from May through October and monthly from November through April, and flow at sufficiently frequent intervals to generate rating curves for the streams. The duration of monitoring is at least two years after the completion of contouring. For stream channel integrity and morphology, Table MR-2 addresses channel stability and erosion, channel sinuosity channel profile, and cross sections. The release criteria are: "Stable channel and banks, no significant erosion, or bank undercutting, stream morphology within the range of values appropriate for the designed stream type (Rosgen C or E)." The location of sampling is over the entire channel length and representative cross sections. The frequency of monitoring for channel stability and erosion is after "significant" rain events for at least the first two years after contouring. The frequency of monitoring for channel sinuosity, channel profiles, and cross sections is years 2, 5, and 10. For soils, Table MR-2 addresses substrate description, litter accumulation, and compaction, but lists no release criteria. For vegetation, Table MR-2 addresses the species list and percent cover, FLUCFCS Level III map, percent bare ground and open water, nuisance species cover, upland species cover, tree density, shrub density, tree height, tree breast height diameter starting in year 5, and fruit and seedlings (starting in year 7). The release criteria are 400 trees per acre that are 12 feet tall, 100 shrubs per acre, species richness and diversity within the range of reference forested and herbaceous wetlands, 80 percent groundcover, and less than ten percent nuisance species. The location of sampling is randomly selected sites along several transects across each wetland, and the frequency of monitoring is years 1, 2, 3, 5, and every other year through the year prior to release. For macroinvertebrates, Table MR-2 addresses the number and identity of each taxon, diversity, functional feeding guilds, and the DEP Stream Condition Index. The release criteria are: "Species diversity, richness within range of reference wetlands, all functional feeding guilds or qualify as 'good' or better in the SCI." The location of sampling is in at least one representative 100-meter reach in each stream, and the frequency is at least twice yearly for at least the year prior to the release request for a stream. CRP The introductory CRP narrative describes IMC's plans to reclaim uplands, but does not impose any obligations upon IMC. Instead, the narrative introduces the reclamation project and summarizes the provisions of the general and specific conditions of the CRP. The failure to incorporate Map I-2, whose wetlands were incorporated by the ERP, and Map I-3 is material. CRP General Conditions 8, 9, and 10, discussed below, impose upon IMC certain requirements when reclaiming certain communities, but do not themselves impose the requirement of reclaiming these communities. The same is true for CRP Specific Condition 8. The only subcondition mentioning Map I-2 is Specific Condition 8.c, which alludes to Map I-2 while imposing upon IMC the reclamation technique of backfilling at least 15 inches of sand tailings upon those areas to be reclaimed as temperate hardwoods, live oak, and hardwood-conifer mixed. If this indirect reference imposes upon IMC the obligation of reclaiming these three upland forests pursuant to their depiction on Map I- 2, it is odd that Specific Conditions 8.a and 8.b fail even to mention Map I-2 in their discussion of the sand tailing and topsoil requirements for reclaimed pine flatwoods and sand live oak and xeric oak, especially when these three upland forest communities account for over 400 acres of reclaimed uplands, according to Table 12A1-1, which is also not incorporated into the CRP. The narrative portion of the CRP states that IMC's reclamation plan is to create 1769 acres of pasture, 50 acres of herbaceous, shrub, and mixed rangeland, 273 acres of palmetto prairie, 194 acres of pine flatwoods, 33 acres of xeric oak, 43 acres of temperate hardwood forest, 39 acres of live oak forest, 196 acres of sand live oak forest, and 550 acres of hardwood- conifer mixed forest. The CRP notes that most of the communities in the no-mine area, enhanced areas, and reclaimed communities will form part of a "larger mosaic of diverse upland and wetland habitat associated with Horse Creek and will serve as important wildlife corridors." The failure of the CRP approval to incorporate Map I-2 is an oversight. In the introduction to the January submittal, IMC proposed to reclaim the uplands, by community and area, as enumerated in Table 12A1-1, and, by community and location, as depicted on Map I-2. The failure to incorporate Map I-3 is probably an oversight, based on the second CRP narrative quoted below. The CRP narrative states that IMC has developed a Habitat Management Plan (HMP), which includes detailed pre- mining wildlife surveys and relocation programs. The narrative states that IMC will relocate, disturb the habitat of, and reclaim habitat for Florida mice, gopher tortoises, gopher frogs, and other commensals, pursuant to approvals from FWC. The narrative reports that IMC's Indigo Snake Management Plan has already received approval from the required agencies. Also, IMC will spend at least $30,000 to fund research on the potential of relocating burrowing owls onto reclaimed landscapes and at least $30,000 to analyze amphibian use of natural and reclaimed wetlands. However, the ERP and CRP approval incorporate only parts of the HMP. The CRP narrative adds: In addition to wetlands, a significant portion of the reclamation plan will focus on wildlife habitat through the creation of a diversity of upland habitat types adjacent to the Horse Creek corridor. This will provide a contiguous corridor averaging half a mile wide. IMC has committed to reclaim significant areas of pine flatwoods, palmetto prairie, sand live oak, and other upland habitats well beyond what is required by existing reclamation rules. This will be accomplished mainly through topsoiling and planting of a diversity of native species including shrubs and groundcover species. The use of exotic forage grasses will be minimized and native grass species will be emphasized in the groundcover of reclaimed upland habitat areas. A diversity of shrubs will also be planted in reclaimed upland forest areas. In addition, most of the mitigation wetlands will be created with diverse upland habitats surrounding them, resulting in enhanced wildlife and water quality functions. The CRP narrative addresses reclaimed soils: Special emphasis has also been placed on improving post reclamation soils. . . . Emphasis has been placed on restoring soils to more closely mimic native soils and existing soil horizons by making greater use of native topsoil and incorporating a greater percentage of sand at the surface. Green manure will be incorporated into surface soils where native topsoil is not used. In most cases, existing overburden spoil piles will be graded down and then capped with several feet of sand tailings. The thickness of the sand layer will be determined based on the targeted reclaimed land use with some wetlands requiring additional overburden to restore appropriate hydrology. The CRP narrative acknowledges that IMC has developed an Integrated Site Habitat Management Plan that includes plans for the reclamation of uplands, control of nuisance and exotic species in uplands, and management of all listed species. The CRP narrative asserts that IMC will reclaim and manage over 1378 acres of uplands, such as by removing cogongrass and maintaining it to less than 10 percent coverage, except less than 5 percent coverage within 300 feet of wetlands. The CRP narrative mentions that IMC has "volunteered" the Conservation Easement and Easement Management Plan to encumber not less than 525 acres associated with Horse Creek. CRP General Condition 7 states: "[IMC] is encouraged to implement the Integrated Habitat Network (IHN) concept (where possible) when establishing reclaimed upland and wetland forested areas." As overlaid on OFG, the IHN, which is developed by DEP, is depicted in Figure 12-5. The IHN covers almost all of the no-mine area; the floodplains and headwater wetlands of the Stream 1e series, Stream 3e, and Stream 3e?; much of the non-pasture reclaimed uplands; and a large area of reclaimed improved pasture south and west of the reclaimed sand live oak area immediately west of the West Lobe. The backbone of the IHN is the network of rivers and streams, with their floodplains, that provide multifunctional habitat for wildlife. As noted in the introduction to the January submittal, the HMP helps implement the portion of the IHN located at OFG. Although only selectively incorporated into the ERP and CRP approval, the HMP describes IMC's overall plan for reclaiming OFG. The stated goal of the HMP is "to maintain or improve the biological functions of the wetlands and uplands . . . as an integrated component of the mining and reclamation plans." The HMP adds: "By preserving and managing the highest quality habitats on [OFG], these reserves will serve as source populations to recolonize the remainder of the site following completion of reclamation." Overall, the reclamation plan and HMP try to restore a functional interrelationship of uplands, wetlands, and surface water to replace the reduced functions that result from the agricultural alterations to uplands, wetlands, and most of the surface water, leaving large areas of a patchwork fragmentation of habitats. The HMP covers habitat management prior to land clearing, species-specific management techniques immediately prior to land clearing, species-specific management techniques during mining, habitat management in no-mine areas, reclamation goals for habitat, reclaimed habitat management after release, and, in the second part of the HMP, specific actions for each listed wildlife and plant species. Prior to land clearing, IMC will engage in little active habitat management, apart from surveys, as the Carlton- Smith family continues its agricultural uses of the land, which it is entitled to do under its contract with IMC. Immediately prior to land clearing, IMC will relocate each species, after obtaining the necessary permits, either by capture or, for the more mobile species, controlled burns or directional clearing to encourage wildlife migration into an adjoining refuge area. For listed bird species, IMC will protect their nesting areas or restrict land clearing to non-nesting season. During mining, aquatic- and wetland-dependent species will continue to have access to Horse Creek and its riparian wetlands, which are never isolated by the ditch and berm system. The only permitted direct disturbance of the no-mine area is outside Horse Creek's direct floodplain. During mining, the vast water recirculation system will provide incidental, temporary habitat for many aquatic- or wetland-dependent species. The second part of the HMP identifies management techniques for specific listed species of vertebrates. The HMP states that no listed plants exist on OFG. The HMP addresses 15 listed species observed on OFG and nine listed species that could potentially use OFG. The HMP mistakenly lists the Florida panther in the latter category, rather than the former category, but the error is harmless given the limited use of OFG by the Florida panther and the apparent lack of a breeding population north of the Caloosahatchee River. The following paragraphs describe the HMP's treatment of several listed species using OFG. Noting that the American alligator, which is a species of special concern, occupies freshwater habitats throughout Florida, plenty of such habitats exist around the mining areas, and the alligator is mobile, IMC expects that the American alligator will move out of the way of mining activities, so no management measures will be used for alligators. Presumably well-served by former Land-and-Lakes reclamation and an opportunistic inhabitant of deep wetland reclamation, alligator management is of no importance in these cases. The HMP reports two possible observations on OFG of the Florida panther, which is an endangered species. There is no doubt about one of these observations. On the other hand, there is no doubt that OFG is far from prime panther habitat. Thus, IMC will check for panther signs during pre-clearing surveys and anticipates that the unmined floodplains that are part of the IHM will maintain suitable habitat--presumably, for travel. IMC has already mapped the distribution on OFG of the gopher tortoise, which prefers well-drained, sandy soils characteristic of xeric and mesic habitats. IMC has already prepared a management plan for gopher tortoises, which are a species of special concern, and, upon DEP approval, will engage in several measures to reduce mortality due to mining activities, including, upon receipt of an FWC permit, relocating gopher tortoises, as well as other commensal species found in or near the tortoises' burrows, to appropriate locations, including one or more of the above-described ACIs. The Sherman's fox squirrel, which is a species of special concern, prefers sandhill communities and woodland pastures, and many of these squirrels use suitable areas of OFG. They are mobile, and, during mining operations, they will move to the no-mine areas adjacent to Horse Creek. Prior to land clearing, IMC will survey each area, and, if it finds active nests, these areas will be avoided until the young squirrels have left the nests, pursuant to FWC requirements. The Florida Mouse, which is a species of special concern, inhabits sand pine scrub and other xeric communities and is a commensal of the gopher tortoise. Prior to land clearing of suitable Florida Mouse habitat, IMC will conduct live-trapping. If any such mice are captured, IMC will relocate them to a suitable relocation site, such as to ACI-2, ACI-4, or ACI-6 or to xeric or pine flatwoods/dry prairie habitat that will be reclaimed on OFG. IMC will employ similar procedures for the Florida gopher frog, which is another commensal of the gopher tortoise. A species of special concern, the Florida gopher frog will also be the subject, with other amphibians, of research regarding use of reclaimed habitats and funded by IMC with at least $30,000. The Audubon's crested caracara, which is a threatened species, prefers dry prairie with scattered marshes and improved pasture. They typically nest in cabbage palms or live oak trees. Observers have seen a pair of caracaras on OFG, but attempts to locate a nest onsite have been unsuccessful. Prior to clearing cabbage palms, IMC will again survey the area for nests. If IMC finds a nest onsite or within 1500 feet of OFG, it will develop an FWC-approved management plan. The post- reclamation palmetto prairie and pine flatwoods are good caracara habitat. One of the few listed species whose habitat needs have been well-served by agricultural conversions to improved pasture, the burrowing owl occupies numerous areas on OFG. IMC intends to schedule land clearing in areas with active burrows during non-nesting season, but, if this is impossible, IMC will attempt to empty the burrow prior to clearing the land. Additionally, IMC will spend at least $30,000 to fund research to improve the technology to relocate onto reclaimed land burrowing owls, which are a species of special concern. Although IMC found on OFG no nests of sandhill cranes, which are threatened, or little blue herons, which are a species of special concern, sandhill cranes nest in reclaimed wetlands on the Ft. Green Mine, and IMC expects sandhill cranes to nest in the reclaimed wetlands at OFG. Prior to mining, IMC will survey marshes for sandhill crane and little blue heron nests, and, if it finds any, it will disturb those areas in non- nesting season. Wood storks, which are endangered, use OFG for foraging, but IMC found no evidence of wood stork rookeries on or nearby OFG. The nearest known active rookery is 22 miles from OFG. Prior to landclearing during wood stork nesting season, IMC will survey each wetland with the potential to support stork nesting sites. If IMC finds any nests, it will follow the latest guidelines from FWC or U.S. Fish and Wildlife Service for protecting the site. For the white ibis, snowy egret, and tricolored heron, which are species of special concern, IMC will survey those wetlands that are suitable nesting site prior to landclearing. If any active nests are found, IMC will schedule landclearing during non-nesting season. CRP General Condition 8 provides that groundcover in all upland forests shall include one or more of the following native plants: fruit-bearing shrubs, low-growing legumes, native grasses, and sedges. CRP General Condition 9 provides that IMC shall use native grasses and shrubs when reclaiming grasslands and shrub and brushlands. CRP General Condition 10 provides that IMC shall incorporate clumps of trees in reclaimed improved pasture so that each ten acres has "some trees." CRP General Condition 11 states that IMC shall make "every effort" to control nuisance and exotic species within the mine. CRP Specific Condition 1 is ERP Specific Condition CRP Specific Condition 2 is ERP Specific Condition 23. CRP Specific Condition 3 is ERP Specific Condition 11. CRP Specific Condition 4 is for IMC to obtain authorization from the FWC to trap and relocate Florida mice. Specific Condition 4 requires the trapping and relocation of Florida mice prior to clearing areas inhabited by them. CRP Specific Condition 5 requires IMC to make "every effort" to relocate listed plant species to suitable reclamation sites when such species are encountered prior to or during land clearing. CRP Specific Condition 6 is ERP Specific Condition 12.c. CRP Specific Condition 7 is ERP Specific Condition 12.d. CRP Specific Condition 8.a provides: Areas designated as pine flatwoods . . . and palmetto prairie shall be reclaimed by placing a minimum layer of fifteen (15) inches of sand tailings over the overburden and topsoiling with three (3) to six (6) inches of direct transferred or stockpiled native topsoils from pine flatwoods or palmetto prairie areas as that topsoil is available and feasible to move. Feasible means of good quality, relatively free of nuisance/exotics species, and within 1.5 miles of the receiver site. If topsoil is not available or feasible to move, a green manure crop will be seeded and disked in after it has matured before applying a flatwoods or palmetto prairie native ground cover seed mix to this site. In flatwoods, longleaf pine . . . or slash pine . . . shall be planted in the appropriate areas to achieve densities between 25 and 75 trees per acre. In flatwoods and palmetto prairie, shrubs typical of central Florida flatwoods and palmetto prairies will be recruited from the topsoiling, planting, and/or seeding to achieve a minimum average density of 300 shrubs per acre. The total vegetation covered by hydric flatwoods will be greater than 80 percent, in mesic flatwoods and palmetto prairies will be greater than 60 percent, and in scrubby flatwoods, greater than 40 percent. CRP Specific Condition 8.b provides: Areas designated as sand live oak or xeric oak scrub . . . shall be reclaimed by placing several feet of sand tailings over the overburden and topsoiling with three (3) to six (6) inches of direct transferred or stockpiled native topsoil from scrubby flatwoods or scrub areas. Feasible means of good quality, relatively free of nuisance/exotics species, and within 1.5 miles of the receiver site. If topsoil is not available or feasible to move, a green manure crop will be seeded and disked in after it has matured before applying a scrubby flatwoods or scrubby native ground cover seed mix to this site. Trees and shrubs typical of central Florida scrubs will be recruited from the topsoil, planted, and/or seeded to achieve a minimum density of 600 plants per acre. Vegetative cover in these areas will be greater than 40 percent. CRP Specific Condition 8.c provides: Other upland forest areas, including [temperate hardwoods, live oak, and hardwood-conifer mixed], shall be reclaimed, as illustrated by Map I-2, by placing a minimum layer of fifteen (15) inches of sand tailings over the overburden, capping the area with approximately three (3) inches of overburden and disking the surface to reduce compaction of the upper soil layer prior to revegetation. Other uplands shall be revegetated with a native ground cover, planted with trees to achieve a density of 200 plants per acre, and planted with shrubs to achieve a density of 200 shrubs per acre. CRP Specific Condition 8.d provides that IMC shall incorporate native grass species into the groundcover of all reclaimed uplands. CRP Specific Condition 8.e allows IMC to use bahia grass, Bermuda grass, and exotic grass species as groundcover in native habitats only in "limited amounts" needed for "initial stabilization in areas highly prone to erosion." When using these grasses, IMC must maintain them to prevent their proliferation. CRP Specific Condition 9 is ERP Specific Condition CRP Specific Condition 10 is ERP Specific Condition 21. CRP Specific Condition 11 resembles ERP Specific Condition 11, but requires more of IMC. CRP Specific Condition 11 states that IMC "has committed" to initiate the management and evaluation of amphibians, including the Florida gopher frog, and shall adhere to the provisions of the IMC Minewide Gopher Tortoise and Burrow Conceptual Management Plan. IMC shall pay at least $30,000 to conduct a study of amphibian use of reclaimed and unmined wetlands. IMC shall report its progress in the annual narrative reports that it must file, pursuant to Florida Administrative Code Rule 62C-16.0091. CRP Specific Condition 12 contains similar provisions for the burrowing owl. Related to ERP Specific Condition 15.a, CRP Specific Condition 13 requires IMC to make "every effort" to control cogongrass by eradicating it prior to mining, removing it after it colonizes spoil piles during mining, inspecting donor topsoil sites to prevent infestation by it, and regularly treating it on reclaimed sites to maintain coverage below 10 percent, or 5 percent within 300 feet of any reclaimed wetland. WRP The WRP at issue is for the Ft. Green Mine, not OFG. The basic purpose of the WRP is to permit IMC to dispose of the clay tailings extracted from OFG in CSAs O-1 and O-2, which are located at the southern end of the Ft. Green Mine. In an unchallenged action, DEP, on March 20, 2001, approved a requested modification of the CRP approval for the Ft. Green Mine to permit the changes sought in these cases for the Ft. Green Mine WRP. Thus, the WRP modification sought in these cases is merely a conforming modification. Normally, a WRP/ERP would take precedence over a CRP approval because mining may not start without a WRP/ERP, but may start without a CRP approval. In the unusual situation at the Ft. Green Mine, where the mining has been completed, the analysis of the WRP modification is limited to, primarily, the sufficiency of the changes in mitigation to offset the already- completed mining and, secondarily, the relevant impacts of the mitigation itself. DEP issued the WRP on May 1, 1995. This permit allowed IMC to mine 524.6 acres of wetlands at the Ft. Green Mine. On February 3, 1997, DEP issued an ERP to allow IMC to disturb 1.39 acres of surface water for a utility corridor. Following the receipt of a request by IMC for a major modification of the WRP to permit the mining of 7.6 acres of wetlands, DEP consolidated this request, the utility-corridor ERP, and the original WRP into a new WRP issued July 28, 1999. After a modification to the new WRP in 2000 that is irrelevant to the present cases and other irrelevant permitting activity, IMC has requested the modification that is at issue in these cases. Because this WRP modification follows the completion of mining and the near-completion of backfilling of sand tailings into the mine cuts, a denial would not spare the wetlands and other surface waters from the impacts of mining. Rather, a denial would leave the Ft. Green Mine with greater impacts and less mitigation. In simplest terms, a denial would harm the water resources of the District. Strengthening the already-approved mitigation and diminishing the impacts of the already-approved CSAs, this WRP modification will authorize IMC to reduce the size of the two CSAs (O-1 and O-2) in the southern end of the Ft. Green Mine and relocate them farther from Horse Creek; to relocate several reclaimed wetlands in the vicinity of CSAs O-1 and O-2 and expand their area by 2.7 acres with minor changes to some sub- basin boundaries; and to modify the reclamation schedule to conform to a modification already approved without challenge for the Ft. Green Mine CRP. The record demonstrates that the reduction in size and relocation of the CSAs away from Horse Creek will reduce the hydrological and biological impacts from those already permitted. The record demonstrates that the expansion of the area of reclaimed wetlands will add mitigation to offset the hydrological and biological impacts from already-completed mining activities. The record demonstrates that the relocation of the reclaimed wetlands and modification of the reclamation schedule will not affect the impacts or mitigation. Other Mitigation/Reclamation Projects Introduction The formation of wetlands vegetation, according to IMC biologist Dr. Andre Clewell, is a function of topography, hydrology, soils, and physical environment--to which should be added time. The formation of soils, according to Charlotte County soil expert Lewis Carter, is a function of parent material, time, relief, vegetation, and climate. Hydrology is dependent upon, among other things, topography, soils, geology, vegetation, and climate. Successful reclamation must thus account for the complex interdependency of the dynamic processes involving vegetation, soil, and hydrology. Although actual reclamation follows a clear order-- geology, soils, contouring, and planting--the order of the design process is not so clear. Presumably, in designing a reclamation plan, the biologist, soil scientist, and hydrologist would each prefer to have the final--as in last and authoritative--word. In general, the comparison of older mitigation sites to newer mitigation sites requires caution due to two factors, which somewhat counterbalance each other. The vegetation of the older sites has had longer to establish itself. The importance of this factor varies based on the type of vegetation. Groundcover establishes more quickly than shrubs, and shrubs establish more quickly than trees, but groundcover that requires protection from the tree canopy may not be able to colonize an area until the trees are well-established. Soils take a longer time to recover, generally longer than the timeframes involved in phosphate mining reclamation in Florida. The soils present in Hardee County took 5000 to 10,000 years to form. The A horizon, or topsoil layer, at OFG formed over 300-500 years. However, if the soil and hydrology are suitable at a reclaimed site, an A horizon may start to reform in as little as 10 years, but, even under ideal conditions, it will take several hundred years to reform to the extent and condition in existence prior to mining. The mucky soils underlying bay swamps form at the rate of about one inch per 1000 years. Offsetting the advantage of age for vegetation and soils, the older reclamation sites may suffer from less advanced designs and construction techniques. Newer sites benefit from advances in science and technology that have enabled phosphate mining companies to design and implement reclamation projects that more successfully replace the functions of the natural systems and communities lost to mining. Some of these advances have resulted in dramatic, sudden improvements in reclamation. The assessment of past reclamation projects must account, not only for the age of each project, but also the willingness of the phosphate mining company at the time to employ the then-available science and technology. The ratio of the cost of reclamation to projected revenues depends on the variables of specific mitigation expenses, mining expenses, and the value of the phosphate rock. These economic factors operate against the backdrop of a dynamic regulatory environment. In these cases, for example, IMC's willingness to reduce its mining impacts and expand its mitigation was a direct result of the Altman Final Order and DEP's decision to revisit its earlier decision to permit the Ona Mine. Uplands The uplands at OFG are more amenable to successful reclamation than the wetlands or streams at OFG. Uplands provide crucial functions. Certain uplands, such as those that provide seepage to wetlands or prime recharge to deep aquifers, provide hydrological functions as complex as the hydrological functions of many wetlands. Certain uplands provide irreplaceable habitat. Certain uplands vegetation is as vulnerable to climactic or anthropogenic disturbance as any wetlands vegetation. However, for the most part, the functions of uplands are not as complex or important as the functions of wetlands and other surface waters, when examined from the perspective of the water resources of the District, and these functions are more easily reclaimed. Over 77 percent of OFG and over 90 percent of the uplands at OFG are agricultural (2146 acres) or pine flatwoods, palmetto prairie, or sand live oak (1120 acres). (As noted above, palmetto prairie and sand live oak share many attributes of pine flatwoods, which they often succeed.) In terms of function, tolerance to ranges of hydrology and soils, and robustness of post-reclamation vegetation, these 3266 acres of uplands communities will be easier to reclaim than all of the proposed streams and wetlands, except for deep marshes, although pine flatwoods and palmetto prairies present the greatest difficulties in uplands reclamation due to their soil and hydrological requirements, including access to the post- reclamation water table. Impacts to uplands include the disappearance--even temporarily--of critical habitat for listed species, the susceptibility of uplands to post-disturbance nuisance exotics, and, for upland forested communities, the relatively long period required for restoration of the canopy. However, these impacts can be offset in most cases. Management plans can mitigate the temporary or permanent loss of specific upland habitat, depending on the availability of habitat and the robustness and abundance of the species requiring the habitat. Absent the presence of rare uplands habitat and/or rare species requiring the habitat, a greater problem with uplands reclamation is controlling nuisance exotics. Various grass species, including Bahia, Bermuda, torpedo, centipede, Natal, and cogon, impede progress in the development of a healthy uplands community. One of the world's ten worst weeds, cogongrass is limited to uplands, although it may extend into the higher parts of wet prairies and drier areas within forested wetlands. Although nuisance and exotic species may invade undisturbed areas, the removal of existing upland vegetation exacerbates the problem by removing native competitors and stimulating unwanted germination. However, ongoing maintenance, through a combination of herbicides, manual removal, and fire, controls the nuisance exotics long enough that the native vegetation can colonize the disturbed area. Upland forested communities require protection from grazing and mowing to permit their establishment. Canopy development takes years for any upland forested community and, for slower-growing xeric systems, at least a decade. The timely restoration of an appropriate fire regime is also important for the health of many upland communities. Not surprisingly, the record demonstrates the successful reclamation of uplands at several mitigation sites. In recent years, reclamation scientists have restored uplands structure of uplands by restoring the understory and midstory. Uplands restoration has improved with the introduction of new, more effective reclamation techniques, such as topsoiling and seeding. Until 1987, for instance, restoration biologists did not know that wiregrass--a key component of the understory of pine flatwoods--produced seeds. This knowledge has assisted in the reclamation of a proper understory of pine flatwoods. The favorable prognosis of uplands reclamation means that extensive areas of OFG uplands may be mined. Their functions will be substantially replaced, in a reasonable period of time, upon the establishment of the reclaimed upland community, although the destruction of xeric communities means their absence for relatively long periods of time and the destruction of uplands providing seepage support to wetlands requires the close-tolerance hydrology and soils associated with the most difficult wetlands reclamation. Approved in 1989 and amended in 1994, constructed by 1986, and released in 1994, Best of the West (NP-SWB(1D)) was targeted for 15-18 acres of xeric habitat. Best of the West was constructed on sand tailings overlaying overburden, although this site exhibits some stunted vegetative growth where the sand tailings may not be very thick and the roots of trees may have encountered the hardened overburden. FWC assisted the phosphate mining company in designing the reclamation plan for this site, which has resulted in the successful reclamation of 10 acres of xeric habitat. The CDA provides some background on Best of the West. The West Noralyn Xeric Scrub Reclamation (N-5), which was constructed by 1986, contained "mulched overburden plots" and 60 acres of unmined scrub. Containing a total of 462 acres of reclaimed and unmined land, Noralyn was the first attempt to create a large-scale xeric community. About 120 acres of Noralyn received 12 inches of donor topsoil from a comparable xeric community. Due to a lack of representation in the donor site, supplemental plantings of longleaf pine, sand pine, and rosemary followed. The overall project has been "moderately successful," but the 18 acres that yielded "exceptional results" were dubbed "Best of the West." Best of the West thus illustrates a recurrent feature of much reclamation activity, in which successful projects are actually small parts of the original project area, the rest of which is substantially less successful. The CDA states that, in January 2000, IMC initiated a land management program for Noralyn that includes herbicide applications and prescribed burns. After herbicide was applied to kill cogongrass, IMC conducted the first burn in March 2001. Noralyn is now being managed for four to five families of Florida scrub jays, a listed species. Four Eastern Indigo snakes, 225 gopher tortoises, numerous gopher frogs, and 119 Florida mice have been relocated to Noralyn. Approved in 1988, constructed in 1991, and released in 1992, Hardee Lakes topsoil (FG-PC(1A)) has a 7.9-acre uplands component that was topsoiled with one inch over overburden. Despite receiving no maintenance, the site displays few weeds or nuisance exotics, although cogongrass has invaded the site. The reclaimed site displays saw palmetto, gallberry clumps, creeping bluestem grass, and, in topsoiled areas, flowering milkwood. The site includes an ecotone between pine flatwoods and a wet prairie, which developed due to the appropriate slope and soil. The CDA identifies two one-acre demonstration projects with Hardee Lakes topsoil. The Ft. Green-Hardee Lakes Pine Flatwoods Project, a topsoiled site, has achieved a lower ratio of saw palmetto to pines than is presently typically of fire-suppressed communities and is more typical of historic Florida pine flatwoods. The Ft. Green-Hardee Lakes Palmetto Prairie Site, also topsoiled, has been successfully revegetated with saw palmettos and other appropriate species. An interesting uplands reclamation site, for its different use of soils, is the Bald Mountain complex (KC-LB(2) and LB(4)), which is a 180-acre site. In a reclamation project approved in 1989 and 1996, constructed in 1993, and released in 1994 and 2002, IMC backfilled the Bald Mountain site with sand tailings down to 40 feet, capped the sand tailings with six inches of overburden, and then mixed the soils. Nearby, Little Bald Mountain received only sand tailings. Scrub were planted on both locations, but Bald Mountain also received sandhill plantings. Bald Mountain contains suitable sandhill species, such as sandhill buckwheat, although natal grass has been a problem. Natal grass is an invasive grass that colonizes quickly and often requires manual removal. Little Bald Mountain contains appropriate understory grasses, including short-leaved rosemary, an endangered species; Gopher apple, an important wildlife food; and Ashe's [savory] mint, a listed species. The rosemary and mint are reseeding themselves. The site also contains several large palmettos that were started from seed. Approved in 1996, constructed in 2000, and not yet released, Ft. Green/Horse Creek Xeric (FG-HC(3 & 5)) is a 99-acre uplands site reclaimed as xeric oak. IMC backfilled at least six feet of sand tailings over the overburden and then added topsoil over the sand. Already, this site, which is in the nearby Ft. Green Mine, has developed all levels of structure in the appropriate ecosystem, although, according to the CDA, it received irrigation "frequently" from an irrigation system at the start of the project. The site includes denser vegetation, such as shrub palmetto, grasses, and forbs. The direct transfer of topsoil has added species diversity, such as a Florida spruce and a listed orchid. The site also contains a small number of longleaf pines. IMC has hand-removed natal grass at this site, but has lately been using a new selective herbicide. According to the CDA, though, the presence of invasive exotics throughout the site is limited to 0.4 percent. One of the best upland reclamation sites is MU 15E Topsoil (FCL-LMR(6)), which was approved and constructed in 2002 and has not been released. This is a 30-acre topsoiled site in which IMC transferred topsoil carefully: if topsoil was taken from a depression on the donor site, the topsoil was placed in a depression in the receiving site. This site already displays a rich diverse plant palette with hardly any weedy or exotic species. In this site, palmetto and wet prairies slope down to a flatwoods marsh. This site also contains a reclaimed ephemeral wet prairie--possibly the only known ephemeral wet prairie ever reclaimed after phosphate mining. With modest efforts regarding soils and possibly more strenuous efforts regarding nuisance exotics, the reclamation of uplands is relatively easily attained, provided the sites can be protected for the longer timeframes necessary to establish upland forests and especially upland xeric communities and an appropriately shallow water table is reclaimed for pine flatwoods and palmetto prairies. Wetlands Wetlands reclamation is generally more difficult than uplands reclamation. Successful wetlands reclamation typically requires better command of post-reclamation topography, hydrology, soils, and physical environment. Material deviations in these parameters reduce, or eliminate, many wetlands functions, such as floodplain communication, nutrient sequestration, floodwater attenuation, ecotone transitions, and habitat diversification. The loss of such functions may result in immediate problems with water quality, water quantity, and habitat. Given the greater difficulty in successful wetlands reclamation, experience in wetlands reclamation is, not surprisingly, more mixed than the generally favorable experience in uplands reclamation. The greater difficulty in, and more guarded prognosis of, wetlands reclamation, as compared to uplands reclamation, means that the disturbance of wetlands demands closer analysis of the functions of the wetlands proposed to be mined, the functions of the wetlands proposed to be reclaimed, and the reclaimed soils, hydrology, topography, and physical environment on which the reclamation scientists will rely in reclaiming wetlands functions. The most important factor in wetlands reclamation is hydrology. Wetlands with less rigorous hydrological needs, especially if they also tolerate deeper water over longer periods of time, reclaim much more easily than wetlands with more precise hydrological needs, especially if they require shallower water over shorter periods of time. The phosphate mining industry has repeatedly reclaimed marshes and cypress swamps that are inundated deeply and for extended periods of time, but has had a much harder time reclaiming shallower wetlands requiring shorter hydroperiods or shallower water levels. The two most difficult wetlands of this type to reclaim are bay swamps and wet prairies. Among herbaceous wetlands, deep marshes are the easiest to reclaim. Often a target of Land-and-Lakes reclamation, deep marshes also are the result of reclamation projects that failed to create targeted shallower wetlands. Charlotte County ecologist Kevin Irwin noted that deep marshes are easier to reclaim than forested wetlands, for which the post-reclamation hydrology must be more precise. Similarly, a freshwater marsh, which tolerates 6-30 inches of water from 7-12 months annually, is easier to reclaim that a wet prairie, which tolerates 0-6 inches of water from 2-8 months annually. Among forested wetlands, bayheads or bay swamps, as defined in these cases as seepage forested wetlands, are harder to reclaim than mixed wetland hardwoods, as IMC biologist Dr. Douglas Durbin testified--likely, again, due to the requirement of more precise post-reclamation hydrology. Accordingly, the parties do not dispute the ability of the phosphate mining industry to reclaim deep marsh habitat, including freshwater marshes and shrub marshes, as well as deep swamps--principally cypress swamps. Like wet prairies, which sometimes fringe deep marshes, deep marshes provide habitat, supply food, attenuate floodwaters, and improve water quality. Deep marshes may host large numbers of different plant species. However, like lakes, deep marshes remove larger amounts of water from the watershed, as compared to shallower wetlands with shorter hydroperiods, due to evapotranspiration. The reclamation projects known as Morrow Swamp, Ag East, 8.4-acre Wetland, and 84(5) trace a short history of the reclamation of deep-marsh habitat. Permitted in 1980, constructed in 1982, and released in 1984, 150-acre Morrow Swamp represents a prototype, second- generation wetlands reclamation project. According to the CDA, Morrow Swamp is from an era in which reclamation did not attempt to restore topography: "This ecosystem included the reclamation of 150 acres of wetland (freshwater marsh, hardwood swamp, and open water) and 216 acres of contiguous uplands. The reclamation site was originally pine flatwoods and rangeland before it was mined in 1978 and 1979." Designed and built before reclamation scientists concentrated on soils, the hydrological connection between Morrow Swamp and Payne Creek, into which Morrow Swamp releases water, is a concrete structure in a berm that leads to a swale that empties into Payne Creek. Morrow Swamp reveals one obvious shortcoming of mechanical outflow devices, at least if they depend on ongoing maintenance, because vegetation and sedimentation in the infrequently maintained outflow device have blocked the flow of water and contributed to water levels deeper than designed. The reclamation scientists pushed the row-plantings of trees in Morrow Swamp in an effort to understand the relationship of vegetation and hydroperiod. In doing so, they killed thousands of trees, such as the cypress trees that Authority ecologist, Brian Winchester, found that grew to 6-8 inches in diameter and suddenly died. This tree mortality was likely due to problems with water depths and hydroperiods, as suggested by the healthier cypress trees lining the shallower fringe of the marsh. Morrow Swamp operates as a basin with a perched water table atop compacted, relatively impermeable overburden. Beneath the dry overburden is moist soil, so there is no groundwater connection between the marsh and the surficial aquifer. According to Mr. Carter, sand is 15 times more permeable than overburden. Morrow Swamp presents numerous shortcomings, but not to alligators, who find ample food and habitat in and about the deep marsh. More importantly, the emergent-zone vegetation within Morrow Swamp is sequestering nutrients and thus providing water-quality functions. Unfortunately, the deeper water supports only floating vegetation, which is much less efficient at sequestering nutrients, and less diverse than the shallower emergent vegetation, so the excessive depths of Morrow Swamp limit its water-quality functions. Although short of a model wetlands reclamation project, Morrow Swamp was an important milestone in the development of wetlands reclamation techniques and clearly functions as a deep shrub marsh today. Permitted in 1985, constructed in 1986, and released in 2002, 214-acre Ag East (PC-SP(1C)) was built on the knowledge acquired from Morrow Swamp. At Ag East, which is just northeast of Morrow Swamp, the reclamation scientists, planting a large variety of trees, focused on water levels and hydroperiods. The reclamation scientists engineered a wetland system with less open water than Morrow Swamp. They also inoculated the surface with a layer of organic mulch material 2-4 inches thick. However, the design of Ag East again incorporated mechanical devices to control water levels. A weir at one corner of Ag East contains boards; by removing or adding boards, reclamation scientists could control the water depths behind the weir. The deep marsh within Ag East is excessively deep with an excessively long hydroperiod. In certain respects, Ag East has functioned better than Morrow Swamp, although there is some question as to vegetative mix establishing the site and the associated functions that the vegetation will provide. Again, though, Ag East features a functioning deep marsh. One clear shortcoming of Ag East was the failure to create appropriate upland habitat, such as pine flatwoods, around the wetlands, so that wetland species could find appropriate uplands habitat for breeding, nesting, or feeding. The CDA notes the availability of quarterly water quality monitoring data, over a five-year period, for pH, dissolved oxygen, conductance, and total phosphorus, among other parameters, but the results are not contained in this record. Permitted in 1983, constructed by 1986, and released in 1995, 8.4-Acre Wetland (FG-83(1)), which was targeted for 8.4 acres of wetland forested mixed, represents an early use of topsoil, which was a good seed source for herbaceous species and helped increase the effective depth of overburden. As noted above, shallower overburden discourages tree growth past a certain stage. However, 8.4-Acre Wetland also uses a water- control weir to control water depths on the reclaimed wetland. Despite its smaller size than Morrow Swamp or Ag East, 8.4-Acre Wetland was a more ambitious project hydrologically, as it attempted to replace a seepage wetland with a seepage wetland that would receive water from the surrounding uplands. Unlike Morrow Swamp and Ag East, 8.4-Acre Wetland was designed to reclaim only forested wetlands, not forested wetlands and marsh wetlands. Unfortunately, 8.4-Acre Wetland did not re-create a seepage wetland due to excessively deep water and excessively long hydroperiods. Emphasizing instead the creation of microtopography, the reclamation scientists added sand-tailings hummocks within the deeper marsh, effectively lowering the water table under the mound, and planted wetland herbaceous and forested species that could not tolerate the wetter conditions around the hummock. The evidence is conflicting as to the success of these hummock plantings, but the idea was sound. Parts of 8.4-Acre Wetland are at least half infested with cattails, and sizeable areas within 8.4-Acre Wetland are reclaimed marsh, not swamp--despite the attempt of the reclamation scientists to reclaim forested wetlands only. Permitted in 1985, constructed by 1987, and released in 1998, 84(5) (FG-84(5)) was targeted for 17.1 acres of wetland forested mixed and 2.3 acres of freshwater marsh. This site is notable for its soil characteristics. After two soil borings, Mr. Carter could not find a water table in the first 80 inches beneath the surface. However, he found an A horizon, but the CDA notes that this site received 18 inches of donor topsoil. Even more recent reclamation projects have tended to yield deep marshes. Permitted in 1997, constructed in 2002, and not yet released, 198-acre P-20 (FG-HC(9)) exists behind the berm that remains from the ditch and berm system that existed during mining. The sole outlet of the marsh is a discharge pipe, which, presently clogged with vegetation, appears to be contributing to excessively high water depths and excessively long hydroperiods, resulting in an abrupt transition from marsh to uplands without the zonal wetlands associated with natural transitions from marsh to uplands. Water in the marsh spreads into the surrounding uplands, which are planted with upland trees. The berm also prevents natural communication between the marsh and the floodplain of Horse Creek, which is a short distance to the west of P-20. In the reclamation projects described above, more often than not, the reclamation scientists reclaimed deep marshes while targeting shallower wetland systems or at least shallower marshes or swamps. By the mid-1980s, wetlands reclamation scientists were addressing more closely hydrology, vegetation, topsoil, and surrounding upland design, and DEP was imposing post-reclamation monitoring requirements on the phosphate mining companies. One common feature of most of these deep-marsh reclamations is their reliance upon artificial drainage outlets. Inadequate or nonexistent maintenance of these outlets causes excessive water depths for excessive periods. Additionally, reliance on artificial drainage outlets betrays the choice not to attempt more sophisticated design and more precise contouring of the post-reclamation landscape. Improvements in the design and execution of contouring could produce relief from the deep- marsh tendencies of reclamation practices in at least three ways: by flattening the slopes of the edges of the marshes to encourage the formation of more emergent vegetation and wet prairie fringes; introducing a more irregular microtopography in the submerged bottom, including hummocks, to develop greater habitat diversity; and engineering and grading more closely the topographical outlets of marshes, instead of relying on manmade drainage devices that required more maintenance than they received, to better reproduce pre-mining drainage features and access effectively the reclaimed water table. After 8.4-Acre Wetland, reclamation scientists produced, in addition to the P-20s, other marshes with better fringes, so as to support wet prairie fringes, but the most, and evidently only, successful example of shallow-wetland reclamation over an extensive area is PC-SP(2D) (SP-2D). Permitted in 1988, constructed in 1992, and released in 1998 (wetlands), SP(2D) comprises 97 acres of forested and herbaceous wetlands. According to Mr. Winchester, SP-2D exhibits a more natural hydroperiod than the other reclaimed wetlands that he studied. Mr. Winchester visited SP-2D during the dry season, and the shallow wetland was appropriately dry, even though other reclaimed wetlands at the time were inappropriately wet. Mr. Winchester also found less than ten percent coverage by exotic vegetation. Wet prairie fringes deeper marsh at SP-2D, rather than forming larger areas of isolated or connected wet prairie, but this wetland achieves extensive shallow-water areas. According to Authority ecologist Charles Courtney, the marsh of SP-2D appears fairly healthy and contains appropriate vegetation. SP-2D contains sawgrass and forbs, including maidencane and duck potato. Crayfish occupy the wet prairie fringe and are eaten by white ibis and otter. The marsh zonation found at SP-2D is partly a result of appropriate soil reclamation. Mr. Carter found good communication between the shallow marsh at SP(2D) and the surficial aquifer. In the wet season, Mr. Carter found the water table at eight inches above grade, demonstrating that the dry conditions found by Mr. Winchester during the dry season did not extend inappropriately into the wet season. Mr. Carter determined that the first four inches of the wetland is mulched topsoil overlying at least four feet of sand tailings. The subsurface soils were appropriately saturated. Permitted in 2002, constructed in 2003, and not yet released, 1.3-acre FCL-NRM(1) (Regional Tract O, ACOE #362) also contains wet prairie vegetation, but the value of this site, for present purposes, is limited by two factors: its age and its use of a technique not proposed for OFG. Regional Tract O, ACOE #362, is a new site that showcases the success--one year after planting--of the technique of cutting wet prairie sod at a donor site and laying it at the recipient site. Sod-cutting is a good technique, earlier used at Morrow Swamp, but is more expensive than the topsoil transfer proposed for OFG. The reclamation of forested wetlands has improved in recent years. To some extent, the history of forested-wetlands reclamation tracks the path of herbaceous-wetlands reclamation: deeper water for longer periods followed by instances of shallower water for shorter periods. Early in the forested-wetlands reclamation process, reclamation scientists and phosphate mining companies favored cypress trees due to their tolerance of a wider range of water depths and hydroperiods than other wetland trees. However, cypress trees do not occur naturally in the forested wetlands being mined in this part of Florida. Over time, reclamation scientists deemphasized the number of species of wetland trees and emphasized instead species that corresponded to those in comparable forested wetlands. Herbaceous and forested wetlands present different reclamation challenges due to the time each type of wetland requires for revegetation. An herbaceous wetland takes 1-2 years to revegetate, but a forested wetland may take 1-2 decades to gain "really good structure," as Dr. Clewell testified. In addition to taking longer to establish than herbaceous wetlands, forested wetlands require two stages of plantings because the groundcover cannot be added until 4-5 years after planting the trees, so that the trees provide sufficient cover for the appropriate groundcover to grow. The hydrological requirements of different forested wetlands vary. IMC will be reclaiming mostly mixed wetland hardwoods (44 acres), bay swamps and wetland forested mix (each 18 acres), and hydric pine flatwoods (15 acres). All of these communities require water depths equal to those required by wet prairies. Hydric pine flatwoods have a very short hydroperiod-- shorter even than the wet prairie. Bay swamps have a long hydroperiod, comparable to that of the freshwater marsh. And mixed wetland hardwoods and wetland forested mix have hydroperiods roughly equal to that of the wet prairie. The dryness required by mixed wetland hardwoods, wetland forested mix, and especially hydric pine flatwoods make them difficult to reclaim. At first glance, the longer hydroperiod of the bay swamp would seem to make it easier to reclaim, among forested wetlands, but two factors make the bay swamp the most difficult of forested wetlands to reclaim. First, as defined in these cases, the bay swamp provides a critical seepage function, which is hard to create because of its reliance on a precise reclamation of topography, hydrology, and soils, at least with respect to the soil-drainage characteristics. Second, the mucky soils of the bay swamps are difficult to reclaim, given their slow rate of formation, as noted above. Thus, even without the requirement of the dominance of bay trees within the bay swamp, as defined in these cases, bay swamps are very difficult to reclaim, as reclamation experience bears out. An early reclaimed forested wetland is 4.9-acre Bay Swamp (BF-1), which was created on land that had been cleared, but at least large portions of it were never mined, so, except possibly for a disturbed A horizon, the pre-mining soils and site hydrology were intact. Permitted under a predecessor program in 1979, constructed by 1980, and released in 1982, Bay Swamp earned restrained praise from the Authority as, with Dogleg Branch, one of the two highest-functioning reclamation sites. This praise is quickly conditioned with the warning that Bay Swamp did not reclaim as a bay swamp, but as another type of forested wetland, albeit a relatively high functioning one. For all these reasons, Bay Swamp is of limited relevance in evaluating the success of forested wetlands reclamation projects. However, in commenting upon Bay Swamp, the CDA offers some insight into the evolution of reclamation design standards and objectives and the optimism of reclamation scientists when it notes the difficulty of establishing loblolly bay-dominated swamps, "apparent[ly because they require] perennially moist, or wet, soil that is not inundated. Heretofore, these moisture conditions have not been specified as an objective in reclamation design. If these moisture conditions were targeted for reclamation, loblolly bay swamp creation would likely become routine." Another candidate for a reclaimed bay swamp is Lake Branch Crossing (BF-ASP(2A)). Permitted in 1993 and modified in 1997, constructed in 1996, and not yet released, 13.4-acre Lake Branch Crossing contains numerous sweet bays, loblolly bays, and black gums. However, this site was replanted with 4000 trees in mid-2002, and over one-quarter of these trees are displaying signs of stress, so they may not survive. Lake Branch Crossing is bound by a berm with culverts, which may not share a common elevation. Lake Branch Crossing is another excessively deep wetland with an excessively long hydroperiod. Although Lake Branch Crossing exhibits some seepage, it derives its water from a nearby CSA with a much-higher elevation and thus does not compare to the seepage systems to be reclaimed at OFG. The final candidate for a reclaimed bay swamp is Hardee Lakes (FG-PC(1A)), which is a 76-acre wetland forested mixed at the top of the Payne Creek floodplain. Permitted in 1989 and modified in 1994, constructed by 1991, and released in 2000, Hardee Lakes (which is not Hardee Lakes topsoil--the uplands site described above) contains a narrow seepage slope between the berm along the edge of a reclaimed lake and the natural Payne Creek floodplain. Although Hardee Lakes contains some bay trees and operates as a seepage wetland, the setting is inapt for present purposes, given the narrow slope descending from the nearby reclaimed lake, which provides the water for the seepage system. Like Lake Branch Crossing, Hardee Lakes presents an unrealistically easy exercise in the reclamation of a seepage slope and is therefore irrelevant to these cases. At OFG, broader seepage slopes will receive much of their water from upgradient groundwater that is not derived from a lake or other surface water, so the reclamation scientists must reclaim more accurately the topography, hydrology, and soils, again, at least with respect to soil-drainage characteristics. Reclamation scientists monitored Hardee Lakes following reclamation. Besides the seepage slope described in the preceding paragraph, Hardee Lakes contains shallower wetlands, including productive wet prairie and mixed wetland hardwoods that are growing without the need of hummocks, but these areas appear to be more isolated than extensive. As IMC restoration ecologist John Kiefer noted, shallow swamps are better than deep swamps. Again, the tendency toward deeper reclaimed systems, even recently, has plagued reclaimed forested wetlands, such as Lake Branch Crossing, as it has plagued reclaimed herbaceous wetlands. Permitted in 1992 and modified in 1998, constructed in 2002, and not yet released, North Bradley (KC-HP(3) and PD-HP(1B)) was reclaimed for 12 acres of wetland hardwood forest, 21 acres of wetland conifer forest, and 87 acres of herbaceous marsh. North Bradley suffers from poor communication with its water table, as evidenced by Mr. Carter's discovery of a perched water table under the marshes and an excessively deep water table, at 48 inches, under the forested wetlands, as compared to a water table at 40 inches under the uplands. Although the marsh is present, the forested wetland is largely absent. The SP(2D) of forested reclamation projects is Dogleg Branch (L-SP(12A)). The 19.8-acre wetland component of Dogleg was targeted exclusively for wetland hardwood forest. Another 83 acres of Dogleg was reclaimed as upland hardwood forests. Permitted in 1983, constructed by 1984, and released in 1991 (uplands) and 1996 (wetlands), Dogleg's hydrology is better, as one reclaimed area reveals seepage from a mesic area sheetflowing into the stream channel, which was also reclaimed and is discussed in the following section. Due to its proximity to the reclaimed wetlands, this mesic area was probably part of the reclaimed uplands. According to the CDA, Dogleg received transfers of its own mulch and received several phases of tree plantings over several years. The CDA notes that Dogleg was the first forested wetland mitigation project under Florida's dredge and fill rules. Trees were established in part by the transplanting of rooted tree stumps. Forest herbs and shrubs and mature cabbage palms were transplanted from nearby donor sites. Despite these and other efforts, according to the CDA, "design flaws attributable to a lack of prior restoration experience required costly mid-course corrections." Due to high tree mortality, trees had to be replanted over 11 years. The CDA concludes that the problem was a depressed water table due to nearby ongoing mining operations--if Dogleg had a ditch and berm system, it certainly did not have recharge wells. Following mining, according to the July 1995 semi-annual report, over 30 acres of mine pits immediately east and north of the unmined headwaters of Dogleg were filled with sand tailings, which then released "[c]onsiderable in-bank storage of ground water from this sand[, which] has seeped ever since through Dogleg Preserve and into the replacement stream." Prior to the cessation of mining, though, Dogleg suffered dehydration. According to the CDA, due to the drawdown, the topsoil dried out, and the overburden, on which the topsoil had been placed, hardened in the dry season, retarding root extension. The actual soil conditions are described in greatest detail in the July 1995 semi-annual report, which states that 12 inches of topsoil overlaid the "overburden fill," which was "clayey sand." Repeated and persistent replanting of trees, seedlings, and saplings eventually succeeded in establishing an appropriate wetland forest, which, given the prevalence of hardwoods, would constitute the successful reclamation of a mixed wetland hardwoods community, given the negligible representation of cypress trees and other conifers at the site. As reclaimed, Dogleg hosts 24 different species of wetland trees, including all that occur on OFG. Dogleg's forested wetlands are functioning well, although the reclaimed uplands have a major cogongrass infestation. Permitted in 1985, constructed by 1987, and released in 1998, 19.4-acre FG-84(5) (84(5)) was targeted almost entirely for wetland forested mixed, and small areas within 84(5) have achieved this objective. However, reclamation scientists planted so many cypress trees that their dominance today precludes the application of the wetland forested mixed label to the overall wetland. Nonetheless, 84(5) is a relatively high- functioning forested wetland community today. Engineered to contain hummocks, 84(5) also featured the use of transferred topsoil overlying cast overburden to a depth of at least six feet. Despite the presence of the topsoil layer, the proximity of the cast overburden to the surface, without an intervening sand layer, may have discouraged the formation of an appropriate water table. Although drawing on a lake, 84(5) displayed, in one soil boring during the middle of the wet season, no water table--not even a perched one--through the first 80 inches below grade. A small strip of saturated soil existed at the surface, but the highly compacted and impermeable overburden prevented communication between the wetland and the surficial aquifer. The slopes of 84(5) are also excessively steep. Substantial efforts are required to reclaim the shallow herbaceous wetlands and forested wetlands to be reclaimed at OFG. Deeper marshes and swamps require less effort to reclaim, although they develop more often than targeted when the reclamation scientists overshoot the mark as to hydrology. For shallow wetland systems, which are more important to reclaim, the failures far outnumber the successes, even today, so considerable caution is required in mining high-functioning shallow wetland systems and considerable effort is required in their reclamation. No bay swamps have been reclaimed, except under atypical conditions. Streams The successful reclamation of streams has also proven elusive to reclamation scientists and the phosphate mining industry. Although only one reclamation of a high-functioning, extensive shallow herbaceous wetland exists, fringe and small- scale shallow wetlands have been reclaimed. The difference between the reclamation of shallow herbaceous wetlands and streams is that reclamation scientists have benefited from 25 years of trial and error in engineering shallow wetlands. No similar history exists in the engineering of streams. Only nine stream-reclamation sites are identified in these cases, and, as DEP contends, only one of these sites is successful: Dogleg Branch. And even Dogleg Branch fails to access its floodplain properly and probably never will. The biggest difference between shallow wetlands reclamation and stream reclamation is that, until OFG, the phosphate mining industry has not intensively designed stream-reclamation projects, so IMC and its reclamation scientists have little experience on which to draw. A wetlands-reclamation practice, as found in a Florida Institute of Phosphate Research study described by Mr. Irwin, has been to reclaim wetlands downslope from their pre-mining location. Concentrating reclaimed wetlands downslope facilitates the re-creation of supporting hydrology. For OFG, IMC proposes to relocate wetlands downslope--probably to good effect, given the reversion of OFG to cattle ranching, post- reclamation. However, an adverse aspect of this practice has been the mining of upslope, lower-order tributaries and their replacement with downslope deeper marshes. Although difficult to quantify, this and similar reclamation practices have resulted in the destruction, by phosphate mining, of many lower- order streams and their permanent loss to the watershed and ecosystem. When attempting to reclaim streams, rather than convert them to downslope marshes, the phosphate mining industry and reclamation scientists have enjoyed little success. Two reasons likely explain this poor record: the complexity of the functions of a lower-order stream system, including its riparian wetlands and floodplain, and an excessive reliance on the ability of streams, post-reclamation, to self-organize. The importance inherent in the stream, its riparian wetlands, and its floodplain, as a functional unit, is reflected in the decision of IMC to extend the no-mine area to Horse Creek and its 100-year floodplain. Dr. Durbin accurately observes that IMC and its 100-year floodplain are, respectively, the first and second most important natural resources present at OFG. Horse Creek's tributaries and their floodplains are important for many of the same reasons. Relying upon reclaimed systems to self-organize is an essential element of effective reclamation. Natural and anthropogenic forces shape all of the natural systems present at OFG, and these forces will shape the reclaimed systems. Good reclamation engineering accounts for the dynamic nature of these reclaimed systems by establishing initial conditions, such as natural outfalls instead of weirs and culverts, that can evolve productively in response to the forces to which they are subject and eventually become high functioning, self-sustaining ecosystems. On the continuum between intensively engineered reclamation projects and reclamation projects that rely on self- organization, stream-reclamation projects in the phosphate mining industry have so heavily emphasized the latter approach over the former that they may be said to have reclaimed streams incidentally. That is, reclamation scientists have reclaimed streams by contouring valleys so that the erosive process of flowing water would form a stream channel over time: often, a long time. At DEP's urging after the issuance of the Altman Final Order, IMC has introduced a much more intensively engineered stream-reclamation effort in its Stream Restoration Plan. The main problem in assessing the likelihood of the success of the highly engineered Stream Restoration Plan is its novelty. On the one hand, the incidental reclamation of streams typically has been so slow in restoring functions that a more intensively engineered plan could generate quick gains, at least in the replacement of the functions of low-functioning stream systems, such as those that have been substantially altered by agricultural uses. On the other hand, the Stream Restoration Plan has little success--and no engineered success--on which to build, and misdesigned elements could take longer to correct than the undesigned elements in an incidentally reclaimed stream. Thus, when the uncertainties of successful stream reclamation are combined with the complex functions of lower-order tributaries, their riparian wetlands, and their floodplains, the higher- functioning streams at OFG are less attractive candidates for mining and reclamation than even the shallow wetlands discussed above. Horse Creek's tributaries are not necessarily low- functioning due to their status as intermittently flowing, lower-order streams. Even intermittently flowing, lower-order streams, such as all of the tributaries of Horse Creek, restrict the erosion of sediment into higher-order streams, uptake nutrients, maintain appropriate pH levels, and provide useful habitat for macrobenthic communities, macroinvertebrates, amphibians, and small fish. Intermittently flowing lower-order streams attenuate floodwaters by diverting floodwaters into the streams' floodplains, thus reducing peak flows, extending the duration that floodwater is detained upstream, and increasing groundwater recharge and, thus, streamflow. Intermittently flowing lower-order streams also supply energy for higher-order streams and the organisms associated with these stream systems, as organic material from vegetation, algae, and fungi in the lower-order streams eventually is flushed downstream to serve as food sources to downstream organisms. The functions of streams, including intermittently flowing lower-order streams, become even more complex and difficult to replace when considered in relation to the functions of the riparian forested wetlands associated with many lower-order streams, such as the Stream 1e series. The riparian forested wetlands provide additional attenuation of floodwaters, as the trees impede the flow of floodwater more than would ground-hugging herbaceous vegetation. Mature trees lining the stream provide a canopy that can cool the waters in the warmer months (thus reducing water loss to evaporation), provide downstream food in the form of leaf litter in the seasonal loss of leaves, shield interior water and habitats from the effects of wind, provide habitat for feeding and hiding for wildlife, and protect the channel from the impact of cattle (thus reducing the damage from the production of waste and turbidity and destruction of the channel and vegetation). The riparian forested wetlands are important in the sequestration of nutrients. If accompanied by flow-through wetland systems, such as those present in the Stream 1e series, riparian forested wetlands display a complex interrelationship between the roots and soils that contributes to improved water quality, among other things. The riparian forested wetlands also provide microhabitats whose detail and design would defy the restoration efforts of even the most dedicated of stream- restoration specialists, of whom IMC's stream-restoration scientist, John Kiefer, is one. For some of the stream-restoration projects, DEP explicitly permitted or approved the reclamation of a stream. For other such projects, DEP, at best, implicitly permitted or approved the reclamation of a stream. Four of the projects are tributaries to the South Prong Alafia River and are in close proximity to each other. From upstream to downstream, they are Dogleg Branch, whose forested wetland component has been discussed above; Lizard Branch (IMC-L-SP(10)); Jamerson Junior (IMC-L-CFB(1)); and Hall's Branch (BP-L-SPA(1)). Hall's Branch is about 4-5 miles upstream from the confluence of the South Prong Alafia River and North Prong Alafia River. All four of these reclaimed streams are now part of the Alafia River State Park. As noted above, Dogleg, a 19.8-acre wetland hardwood forest and 83-acre upland hardwood forest, was constructed in 1984 and is the oldest of these four reclamation sites adjoining the South Prong Alafia River. Next oldest is Hall's Branch, which was permitted as a 3.8-acre wetland hardwood forest in 1982, constructed by 1985, and released in 1996. Next oldest is Jamerson Junior, which was permitted as a 4.3-acre wetland forested mixed in 1984, constructed in 1986, and released in 1996. Ten years younger than the others is Lizard Branch, which was permitted in 1983 and modified in 1991, constructed in 1994, and released in 1996; some question exists as to its target community, but it was probably a swamp. The reclaimed stream at Dogleg Branch is part of a second-order stream, although the CDA reports that Dogleg Branch was a first-order stream. Pre-mining, Dogleg Branch and Lizard Branch joined prior to emptying into South Prong Alafia River. Portions of the record suggest that the reclaimed stream lies between unmined stream segments upstream and downstream, although one exhibit, cited below, implies that the mining captured the point at which the stream started. The CDA and the July 1995 semi-annual report state that the headwaters of Dogleg were unmined or preserved. The CDA adds, with more detail than the other sources, that the headwater and first 600 feet of the stream were unmined, and the next 1000 feet, down to the forested riparian corridor of South Prong Alafia River, was mined. Due to its detail, the CDA version is credited, as is the July 1995 semi-annual report: the headwaters of Dogleg Branch are unmined. The July 1995 semi-annual report states that the stream-reclamation component of Dogleg Branch required persistence, as did its forested wetlands component. In 1987, one year after the filling of the mine cuts with sand tailings, as described above, it was necessary to cut a new channel, because the gradient of the old reclaimed channel was too shallow and forced water to back up in the unmined headwaters. Reflective of the age of the reclaimed stream, the understory vegetative species associated with Dogleg Branch are more successional, having replaced the lower-functioning pioneer vegetative species that first predominated after reclamation. As a stream-reclamation project, Dogleg Branch has achieved close to the same success that it has achieved as a reclaimed wetlands forest or that SP(2D) has achieved as an extensive herbaceous shallow water wetland. The slope of Dogleg Branch's reclaimed channel is steeper than the slopes of its unmined channels, and the reclaimed segment, which functions well vertically within the banks of the channel, does not access its floodplain properly, largely due to its entrenched nature. Due to the entrenchment underway, it is unlikely that the reclaimed segment of Dogleg Branch will ever communicate with its floodplain, as its unmined segments do. Entrenchment is a measure of channel incision-- specifically, the width of the floodprone area, at a water level at twice bankfull, divided by the bankfull width. Entrenchment may cause excessive erosion, which may result in adverse downstream conditions, such as turbidity and lost habitat. Proceeding perpendicular to the flow of the water, entrenchment extends the channel into the riparian wetlands or uplands alongside the stream, dewatering any nearby wetlands and disturbing the local hydrology. Especially if entrenchment is associated with head-cutting, which operates up the streambed, the resulting erosion deepens the channel sufficiently that the water in major storm events can no longer enter its floodplain, but rushes instead downstream. Although the failure of Dogleg Branch to access its floodplain would not affect macroinvertebrates, which do not use the floodplains, the failure of the reclaimed stream to access its floodplain harms fish, which cannot access the floodplain during high water levels to forage, spawn, and escape predators or high water volumes, and reduces valuable aquatic-upland ecotones. This failure also reduces the ability of the stream to attenuate floodwaters. By chance, Charlotte County's stream- restoration expert Frederick Koonce visited Dogleg Branch shortly after a June 2003 storm event and saw the water from the stream enter the floodplains adjacent to the unmined segments of Dogleg Branch, but not the reclaimed segment. The less-rigorous approach of incidental stream restoration, at least in the mid-1990s, is evident the summer 1994 semi-annual report on Dogleg Branch, in which Dr. Clewell provides a detailed discussion of the biological aspects of the reclamation of this site. Implying that the incidental stream element of the Dogleg reclamation project may be nine years younger than provided in the parties' stipulation, Dr. Clewell writes: The temporary land use area was abandoned and reclaimed during the autumn of 1993. The perimeter canal was filled and the access road removed between Dogleg marsh and the unmined tip of original Dogleg Branch. Within a few days of a site inspection on December 2, 1993, final grading and revegetation had been completed, and water was discharging from Dogleg marsh into unmined Dogleg Branch for the first time ever. The water was free of turbidity. The entire connection had been sodded with bahiagrass turf. Dogleg Branch enjoys good water quality. On the two days that Charlotte County water quality scientist William Dunson tested its waters, in October 2003 and March 2004, the reclaimed Dogleg Branch had dissolved oxygen of 6.8 and 8.6 mg/l, iron of 325 and 212 ug/l, manganese of 41 and 22 ug/l, and aluminum of 160 and 132 ug/l. The Class III water standard for dissolved oxygen is 5 mg/l, except that daily and seasonal fluctuations above 5 mg/l must be maintained. The Class III water standard for iron is no more than 1.0 mg/l (or 1000 ug/l). There are no Class III water standards for manganese and aluminum. Dogleg Branch also passed chronic toxicity testing for reproductivity and malformation. However, Dogleg Branch is distinguishable from at least one of the OFG streams. Dogleg Branch is a much less complex restoration project because reclamation scientists did not need to re-create headwaters, the first 600 feet of stream downstream of the headwaters, or flow-through wetlands. Also, the mined segment of Dogleg was much shorter than the mined segment of the Stream 1e series: 1000 feet versus 2039 feet for the Stream 1e series. Betraying an emphasis on forested wetlands to the exclusion of streams, Dr. Clewell places Hall's Branch a close second to Dogleg among stream-reclamation projects. However, DEP properly did not add a second stream to its list of successful stream-reclamation projects. Reclaimed Hall's Branch is not close to performing the functions of reclaimed Dogleg Branch, and, because of the large gap between Dogleg and all of the other reclaimed streams, it is irrelevant which of them occupies second place. The most visible shortcoming of the reclaimed stream at Hall's Branch is its color. Parts of the water in the reclaimed stream within Hall's Branch are highly discolored with iron flocculent leaching from the surrounding mesic forest and shrub communities. Mr. Dunson's water quality tests in reclaimed Hall's Branch, in October 2003 and March 2004, revealed iron levels of 117,000 ug/l and 4025 ug/l, which are 117 times and 4 times the Class III water standard. Dissolved oxygen was also well below Class III standards at 1.5 mg/l and 2.1 mg/l. Manganese was 1880 ug/l and 392 ug/l, and aluminum was 226 ug/l and 35 ug/l. Like Dogleg Branch, Hall's Branch also passed chronic toxicity tests for reproductivity and malformation. The hydrological connection between the surficial aquifer and the reclaimed stream at Hall's Branch is probably interrupted. Mr. Carter, who did not visit Dogleg Branch, inspected Hall's Branch and found the water table 12 inches below the surface. A soil sample reveals overburden with a layer of topsoil. The CDA seems to indicate that part of Hall's Branch was backfilled with sand tailings of an unspecified depth and part of it was merely contoured overburden--a pattern suggestive of that planned for OFG. The CDA states that trees were planted in mulched areas. The reclaimed forest is dominated by cypress, not the targeted wetland hardwoods. Jamerson Junior is a 4.3-acre reclamation site permitted as a wetland forested mixed community in 1984, constructed by late 1985, and released in early 1996. Part of the reclaimed stream is a second-order stream. Like Hall's Branch, Jamerson Junior also shows signs of orange-colored water leaching in to the stream from the nearby mesic zone. However, the water quality in Jamerson Junior is closer to the water quality in Dogleg Branch than Hall's Branch. Mr. Dunson's iron readings, in October 2003 and March 2004, were 583 ug/l and 195 ug/l, which are within Class III standards. Dissolved oxygen was slightly higher than at Dogleg Branch: 7.0 mg/l and 8.0 mg/l. Manganese was 136 ug/l and 21 ug/l, and aluminum was 391 ug/l and 101 ug/l. However, Jamerson Junior failed chronic toxicity testing for reproductivity, but passed for malformation. This is the only stream that IMC also tested for toxicity, and IMC obtained similar results, according to Dr. Durbin. Soil samples reveal a highly variable soil structure underlying Jamerson Junior. Subsequent reclamation work on the stream required the addition of material to change the elevation of the stream bed and possibly to change the drainage characteristics of the original backfilled material. On the day that Mr. Carter visited Jamerson Junior on August 14, 2003, he found the stream flowing. During the wet season, the water table should normally be expressed in the stream. Presenting a more interrupted relationship between the surficial aquifer and the stream than at Hall's Branch, Jamerson Junior displays no connection between the stream bed and water table, at least to a depth of 40 inches. A soil boring revealed water immediately underneath the stream bed, but, at about 15 inches beneath the bottom of the bed, the soil dried to moist; at 40 inches, Mr. Carter found the water table under the stream. Likewise, the Jamerson Junior channel was poorly integrated with the surrounding wetlands and uplands. At the banks of the stream, Mr. Carter did not find the water table within 80 inches of the surface, which is additional evidence of a discontinuity between the water table and the stream. Much of the reclaimed forested areas are mesic, not hydric. The reclaimed floodplains are narrower than the floodplains in the unmined adjacent area, and the slope of the reclaimed channel is steeper than the slope of the unmined channel. The reclaimed uplands are infested with cogongrass, although less than is present at Dogleg. Lizard Branch is a 6-acre reclamation site permitted as a swamp community in 1983 and modified in 1991, constructed by 1994, and released in 1996. Few of the planted gums and maples are surviving. The uplands surrounding the reclaimed area are infested with cogongrass, which has penetrated the shallower wetlands. Lizard Branch is one of the lowest- functioning forested wetlands. Lizard Branch joins Jamerson Junior as one of only two of six reclaimed stream sites to fail chronic toxicity testing for reproduction, although it passed for malformation. Lizard Branch had the highest two dissolved oxygen readings of all six sites tested by Mr. Dunson: 12.6 mg/l and 7.1 mg/l. Its iron levels were 547 ug/l and 352 ug/l. Manganese was second lowest, behind only Dogleg Branch, at 71 ug/l and 30 ug/l. Aluminum was second highest at 445 ug/l and 45 ug/l. Lizard Branch is an interesting, recent reclamation site for several reasons. Lizard Branch represents a relatively recent instance of the destruction of a stream without its re- creation and either the failure of the incidental reclamation of a stream or the subsequent permission by DEP to allow the permanent elimination of the stream. Mr. Winchester testified that he could not even find a stream at Lizard Branch. Charlotte County ichthyologist Thomas Fraser treated Lizard Branch as a stream, but grouped it with marshes in his analysis, apparently due to the lack of channel formation. The fact is that, despite any effort to reclaim a stream, little, if any, stream structure is present at Lizard Branch. However, a stream once flowed over the reclaimed portion of Lizard Branch. In the summer 1994 semi-annual report, Dr. Clewell notes that Brewster Phosphate received a dredge and fill permit in 1983 to dredge and fill the "headwaters of two streams, Dogleg Branch and Lizard Branch" in connection with the mining at Lonesome Mine. Dr. Clewell adds: The permit was issued with the stipulation that the streams and their attendant riverine forest would be restored on adjacent physically reclaimed lands, concomitant with mining. The permit further stipulated that restoration would be monitored and that semi-annual reports documenting progress in vegetational restoration would be submitted to [DEP.] In the report, Dr. Clewell notes that reporting on Lizard Branch has been "discontinued" and DEP issued a new permit in 1991. The 1991 permit modification is not part of this record, but the result was the elimination of a stream, or at least any signs of a stream ten years after construction. Three of the remaining reclaimed-stream projects were built at about the same time as Lizard Branch project. For only one of these projects did the reclamation scientists explicitly target a stream. Permitted in 1985 and subject to a consent order in 1996, constructed in 1991-92 and 1995, and not yet released, 9.6-acre Tadpole Wetland (H-SPA(1)) was targeted to be about one-third wetland forested mix and two-thirds freshwater marsh. Much cogongrass has infested Tadpole, whose stream enters the Alafia River floodplain and leads to a ditch that runs the remainder of the distance to a point close to the Alafia River. Tadpole's water passed chronic toxicity testing for reproductivity and malformation. However, its water violated Class III standards for dissolved oxygen, with readings of 2.8 mg/l and 2.1 mg/l, and for iron, with readings of 11,300 ug/l and 1100 ug/l. Manganese levels were 166 ug/l and 20 ug/l, and aluminum levels were 660 ug/l--the single highest reading among the four reclaimed streams tested--and 95 ug/l. Permitted in 1985, constructed by 1996, and not yet released, Pickle Wetland (H-SPA(1)) is a 34-acre site, 0.8 acres of which was to be reclaimed as stream. A deep marsh that requires treatment of its nuisance exotics, such as cattails and primrose willow, Pickle is just northeast of Tadpole and a few miles north of Morrow Swamp and Ag East. Pickle's stream is surrounded by uplands. Pickle is the only reclaimed stream of six tested to fail chronic toxicity testing for malformation, although it passed for reproductivity. Pickle has the lowest dissolved oxygen of the six reclaimed streams tested by Mr. Dunson: 0.8 mg/l and 1.2 mg/l. Its iron levels violated Class III standards in October 2003, with a level of 4230 ug/l, but passed in March 2004, with a level of 786 ug/l. Manganese was 127 ug/l and 72 ug/l, and aluminum was 107 ug/l and less than 5 ug/l. Permitted in 1991, constructed in 1995, and not yet released, Trib A ((BF-ASP(2A)) is a 120-acre site to be reclaimed as a wetland forested mix, but it includes a slough that empties into an unmined channel with streamflow. To the extent that a reclaimed stream channel is discernible on Trib A, nine years after the completion of its reclamation, the channel is much more steeply sloped than the adjacent unmined channel-- steeper than the two percent slope, beyond which sandy stream bottoms begin to erode. Not surprisingly, the reclaimed channel has begun to head cut and entrench. In an adjacent unmined area, a stream exists within a floodplain with a very flat slope. In the mined area, the reclaimed floodplain is steeper, suggestive of impeded communication between the reclaimed stream and its floodplain. The groundwater communication at Trib A is almost as interrupted as it was at Jamerson Junior. At Trib A, the uppermost 20 inches of soil was saturated, at the time of Mr. Carter's site inspection. Beneath a moist soil layer, the water table occurred at 40-50 inches deep. Parts of Trib A were topsoiled, but the next layer down was originally from an area below the C horizon. However, the soil-formation process is underway. Permitted in 1995, constructed by 1998, and not yet released, 17.6-acre File 20-2B and 70-3 Dinosaur Wetland (FG- GSB(7)) was reclaimed as a freshwater marsh. Dinosaur is due south of Morrow Swamp and is a headwater wetland. The site is still undergoing treatment for cattails. The record describes little, if anything, about the status of this stream. The last two stream-reclamation reclamations were built at least five years after the last pair. Again, DEP and the phosphate mining company identified a stream as a target for only one of the projects. Permitted in 1989, 1992, and 1998, constructed in 1999, and not yet released, South Bradley (KC-HP(1A) is a 171- acre site, 1.7 acres of which was to be reclaimed as stream. South Bradley is just north of Pickle. The channel is steeply incised and deep at points. The channel runs through forested and unforested areas. Charlotte County ichthyologist Thomas Fraser found iron flocculent in South Bradley and no fish within this area of the reclaimed stream, but three species of fish in a nearby area. Permitted in 1999, constructed by 2003, and not yet released, MU R Wetland H (KC-HB(1)) is a 4.8-acre site to be reclaimed as wetland hardwood forest. Monitoring has not yet begun for this site. Although a tailwater system receiving water from a ditch running to a lake, rather than a natural stream, the channel that has formed in MU R Wetland H does not join the existing downstream channel; the two channels are offset by 75-100 feet. Also, the reclaimed floodplain of MU R Wetland H is more steeply sloped than the floodplain of the adjacent unmined area. The slope of the reclaimed channel is steeper than the slope of the unmined channel, and, due to poor design parameters, the new channel is headcutting into the floodplain, which does not appear to be communicating appropriately with the stream. Combining a more steeply sloped reclaimed floodplain with a headcutting reclaimed stream means, among other things, substantially less communication between the stream and its floodplain. The hydrology of MU Wetland H appears to have been ineffectively reclaimed. In the forested wetland a short distance from the stream, the soil remained unsaturated until 80 inches deep. Closer to the stream, the soil was saturated at a depth of 18-20 inches, but the underlying overburden remained dry to a depth of 70 inches, indicating again a failure to reclaim the water table at appropriate depths. As with all of the almost countless reclamation sites on which the parties' expert witnesses copiously opined, MU R Wetland H is not well-developed in the record in terms of pre- mining conditions, design elements, construction techniques, and post-reclamation conditions. However, the dislocated stream that has formed within this reclaimed wetland stream reinforces the principle that even incidental stream reclamation requires some engineering. The excessive reliance upon a contoured valley to self-organize into a stream, as noted above, has impeded the progress of the science of stream restoration, as applied to mined land in Florida. This factor is unique to streams and does not apply to uplands and wetlands. However, another factor has impeded progress in reclaiming successful systems--whether uplands, wetlands, or streams. This factor is undue emphasis on the identity of post-reclamation vegetation, as compared to pre- mining or reference vegetation, at the expense of function. Charlotte County and the Authority stressed the process of the identification of vegetative species, at the expense of undertaking complex functional analysis and attempting to situate reclaimed systems in the process of energy consumption and production. In part, their cases relied on showing that past reclamation projects, as well as that proposed for OFG, do not replicate pre-mining or reference-site vegetation. An undue emphasis on species identity suffers from two major flaws. First, as Dr. Clewell and Ms. Keenan testified, reclaimed sites undergo stages of colonization, and, during early stages, less-desirable species, such as Carolina willow and wax myrtle, may predominate at more-desirable canopy-forming species succeed them. Ms. Keenan added that the life expectancy of Carolina willow, in this part of Florida, is about 25 years, and no reclaimed site older than 15 years is dominated by Carolina willow. Second, any measure of species identity risks the elevation of replication over function, as DEP has already recognized. A criterion of replication, for example, discredits a reclaimed site with a lower species-identity score because it has been colonized by a greater share of more-desirable species than occupy the reference site. DEP has wisely discontinued the practice of assessing reclamation success in partial reliance upon the Morisita's Index. This index measures the identity of species between two sites or the same site pre-mining and post-reclamation, as a criterion of successful wetlands reclamation. In a similar vein, DEP has recently recognized that vegetative analysis cannot preemption functional analysis, especially as to streams. This recognition is evidenced by a report entitled, "Riparian Wetland Mitigation: Development of Assessment Methods, Success Criteria and Mitigation Guidelines," which was managed by Ms. Keenan, revised May 10, 2001, and filed with the U.S. Environmental Protection Agency Grants Management Office (Riparian Wetland Mitigation). Riparian Wetland Mitigation notes the unsatisfactory history of stream reclamation projects with their emphasis on vegetation to the exclusion of stream hydrology and geomorphology. Riparian Wetland Mitigation states: The more recent methods [of stream restoration] recognize that streams are not simply water conveyance structures, but are complex systems dependent on a variety of hydrological, morphological, and biological characteristics. It is now recognized that in order to successfully restore or create a stream, hydrology, geology and morphology must be considered in the design. Noting the increasing extent to which the phosphate mining industry is applying for permits to mine more and larger stream systems and reclaim them on mined land, Riparian Wetland Mitigation frankly admits: The success criteria included in permits issued by the Department for these newly created streams have been based primarily on vegetational characteristics as is typical of most permits requiring wetland mitigation. However, vegetation alone is a poor indicator of stream function and community health. The results of regular permit compliance inspections of existing stream mitigation projects . . . have suggested that for several projects, although existing riparian vegetation was meeting or trending toward meeting permit requirements, problems existed with site hydrology and habitat quality of the stream channel itself. DEP thus adopted a rapid bioassessment method known as BioRecon, which tests macroinvertebrates, and added two other components: habitat assessment and physical/chemical characterization. DEP then performed "BioRecon, habitat assessment, and physical/chemical sampling" on eight reclaimed streams. Of the eight sites sampled, "only one passed the BioRecon and Habitat Assessment." (It is unclear whether Riparian Wetland Mitigation intends to imply that this site-- obviously, Dogleg Branch--also passed the physical/chemical composition, but it probably did.) DEP then tested smaller, unmined streams and confirmed that they, too, could pass BioRecon and Habitat Assessment. Riparian Wetland Mitigation states that DEP will collect data from comparable unmined streams and attempt to relate geomorphological, hydrological, and biological data to develop more refined criteria by which to assess proposed stream-reclamation projects. When DEP issues these criteria, the likelihood of success of a specific stream-reclamation project will be easier to assess. Until then, the assessment of a specific stream-reclamation project remains more difficult, in the context of past reclamation projects that have reduced or even eliminated important functions of streams. Although DEP's new guidelines for stream restoration will mark a transition from a predominantly vegetative to a multi-variable analysis of stream function, even a predominantly vegetative analysis of stream function is superior to IMC's analysis of streams predominantly from the perspective of flood control, as set forth in the CDA prior to the Altman Final Order. In a remarkably candid admission of the difficulty of reclaiming the many functions of unaltered stream systems, including their riparian wetlands and floodplains, IMC, in its response to RAI-102 in the CDA, states: Although it is impossible in a reasonable amount of time to expect to restore the functionality of the creek systems and associated uplands which historically occurred on the One site and are proposed for mining, it is reasonable to conclude that the reclamation plan restores the primary functions of the watershed[:] i.e. the capture, storage, distribution, and release of precipitation. IMC's subsequent discussion in RAI-102 emphasizes the efficacy of mitigation, from a biological perspective, but only as to stream systems whose pre-mining condition is substantially altered. For relatively unaltered systems, IMC's message remains that the reclamation of functions, besides water quantity, within a reasonable period of time is "impossible." Summary of Findings on Past Mitigation/Reclamation Any attempt at assessing past reclamation projects is impeded by the general lack of data presently available, for each reclamation site, describing pre-mining hydrological, topographical, soil, and geological conditions; the functions of pre-mining communities; reclamation techniques; post-reclamation hydrological, topographical, soil, and geological conditions; and the functions, as they have evolved over time, of reclaimed communities. For post-reclamation water tables, the auger and shovel work of one or two men substitutes for several years of weekly piezometer readings in the wet season and monthly piezometer readings in the dry season--correlated to daily rainfall data collected at the same site. For post-reclamation water quality, a few preliminary toxicity and a few dozen water quality readings--some under less than optimal conditions-- substitute for systematic water-quality testing of a broad range of parameters, again over years. For post-reclamation soils, one soil scientists finds an A horizon and concludes substantial formation has taken place within 10 years; another finds an A horizon--never the same one at the same place--and concludes topsoil transfer; and both are probably correct. Absent better data, reliable analysis is difficult because a wide variety of factors may have contributed to the successes of SP(2D) and Dogleg and the failures of too many other sites to list. Even so, a few facts emerge. IMC can reclaim extensive areas of uplands, deep marshes, and cypress swamps, although difficulties remain with each of these types of reclamation projects. With greater difficulty, IMC can reclaim pine flatwoods and palmetto prairies. With even greater difficulty, IMC can also reclaim forested wetlands, except bay swamps. Far more difficult to reclaim than the communities mentioned in the preceding paragraph are extensive shallow wetlands, seepage bayheads, and streams. Any finding of present ability to reclaim these systems must uneasily account for the numerous failures littering the landscape, the failure ever to reclaim successfully a bayhead as bay swamps typically occur in the landscape, and the unsettling fact that nearly all reclamation successes of shallow wetlands are small patches-- almost always far smaller than designed. Any finding of present ability to reclaim these systems must rely heavily on SP(2D) and Dogleg Branch and the design of the current reclamation plan. The probability of the successful reclamation of any community, but especially extensive shallow wetlands, seepage bayheads, and streams, requires careful analysis of each community proposed to be mined and each community proposed to be reclaimed. For each such community, it is necessary to assess its ultimate functions of consuming and producing energy within a robust, sustainable ecosystem. Additional Features of OFG, Mining, and Reclamation Introduction The preceding sections detail the ERP, CRP approval, and WRP modification and other mitigation sites involving the reclamation of uplands, wetlands, and streams. This section adds information concerning OFG in its pre-mining condition, the proposed mining operations, and the proposed reclamation. OFG IMC adequately mapped the vegetative communities at OFG. As Doreen Donovan, IMC's wetlands biologist testified, trained persons using the FLUCFCS system of classifying vegetative communities tend to fall into one of two categories: lumpers or splitters. Scale dictates FLUCFCS code in many cases. Where one biologist may designate a larger, more varied area with one code, another biologist may designate the same area with several codes. The purpose of FLUCFCS coding dictates the scale. Subordinating vegetative-identity analysis to functional analysis undermines the arguments of Charlotte County and the Authority for an unrealistic level of precision in this exercise. The discrepancies in vegetative mapping noted by Mr. Erwin were insignificant. Many were the product of scaling differences, as noted in the preceding paragraph. Some were the product of distinctions without much, or any, difference, given the context and extent of the proposed activities. For present purposes, absent demonstrated differences in wildlife utilization, groundwater movement, or soil, distinctions between, for example, xeric oak and sand live oak on ten acres are essentially irrelevant. In total area, as compared to the 4197 acres of OFG, the claimed discrepancies did not rise to the level of noteworthy. As for the wetlands at OFG, DEP's acknowledged expert in wetlands identification, Deputy Director Cantrell, personally visited OFG and confirmed the accuracy of the wetlands determinations made three years earlier in December 2000 when DEP issued a Binding Wetland Jurisdictional Determination, which remains valid through December 2005. Deputy Director Cantrell noted minor omissions that might total a couple of acres, but these are insignificant, again given the scale of the proposed activity. The sole material flaw in IMC's mapping of OFG is in the omission of floodplains of the tributaries from Map C-3, although Dr. Garlanger's hydrological analysis, described below, adequately considered the storage and conveyance characteristics of these floodplains. Proper analysis of the tributaries' functions, besides flood control, and proposals to reclaim them is impeded by IMC's failure to depict graphically the 2.3-, 25-, and 100-year floodplains. The record suggests that BMR may have waived any requirement for maps of the floodplains except for those of Horse Creek, but the record does not suggest that, if BMR actually waived this requirement, it thus insulated the CDA from scrutiny with respect to all the information that would have been contained in floodplain maps or assured IMC of favorable analysis of this missing information. Charlotte County hydrologist John Loper prepared floodplain maps, which are Charlotte County Exhibits 1762 (mean annual floodplain), 1763 (25-year floodplain), and 1764 (100- year floodplain). These are credited as accurate depictions of the floodplains of the tributaries of Horse Creek. Mr. Loper's maps reveal little difference between the 25- and 100-year floodplains over much of OFG, including the Panhandle. The two floodplains of Stream 3e are slightly different, but the two floodplains of the Stream 1e series are less noticeably different. Focusing on the 25-year floodplain, the only wide, lengthy floodplain outside of the no-mine area is the floodplain along the Stream 1e series, which is the widest band of floodplain outside the no-mine area. At places, the floodplain of the Stream 1e series is as wide as the corresponding floodplain of Horse Creek. Even at its narrowest, which is along Stream 1ee, the floodplain of the Stream 1e series is as wide as that of Stream 2e and wider than that of Stream 3e. No 25-year floodplain runs along ditched Stream 3e?. The only other portions of the 25-year floodplain contiguous to the floodplain of Horse Creek, but outside the no-mine area, are the large wet prairie at the head of Stream 9w, the large wet prairie at the head of Stream 5w, and the headwater wetlands of Streams 1w-4w. As already noted and discussed in more detail below, all of these wetland systems, including the headwaters of Streams 1w and 3e, are lower-functioning than the wetland system associated with the Stream 1e series. As noted above, over half of the area to be mined is agricultural and another quarter of the area to be mined is uplands consisting largely of sand live oak, pine flatwoods, and palmetto prairie. Accordingly, OFG is characterized by native flatwoods soils, which exhibit high infiltration rates, but restricted percolation due to underlying hardpan or loamy horizons. About one-fifth of the soils at OFG are xeric soils. The wet season water table in the wetter areas will be 0-2 feet below grade and in the uplands over 3 feet below grade. Nothing in the record suggests that IMC will have much difficulty in reclaiming agricultural land or sand live oak communities. Nothing in the record suggests that any of the sand live oak that will be mined is atypically valuable habitat. As noted above, the pine flatwoods and palmetto prairie are more difficult to reclaim, but the pine flatwoods and palmetto prairie at OFG are not atypical instances of these common upland habitats. Some of these communities have been stressed by the lack of fire, so that hardwoods, such as oaks, have become sufficiently established as to resist thinning by fire. Lack of fire has also resulted in overgrown vegetation in more xeric areas. Among forested wetlands, IMC will mine 43 acres of mixed wetland hardwoods, 12 acres of hydric pine flatwoods, 9 acres of bay swamps, and 6 acres of hydric oak forests. Among herbaceous wetlands, IMC will mine 95 acres of wet prairie and 67 acres of freshwater marsh. Map F-3 depicts these wetlands with color-coding for ranges of wetlands values, under the Wetland Rapid Assessment Procedure (WRAP), which is used by the U.S. Army Corps of Engineers. Following a weeklong investigation of wetlands at the Ona Mine, as well as other IMC mines in the vicinity, the U.S. Army Corps of Engineers expressly approved revisions to WRAP to accommodate local conditions at OFG. DEP used a different assessment procedure, but WRAP remains useful for general indications of wetlands function. The WRAP scoring scale runs from 0-1, with 1.0 a perfect score. For ease of reading, the following sections shall identify wetlands scoring below 0.31 as very low functioning, wetlands scoring from 0.31 to 0.5 as low functioning, wetlands scoring from 0.51 to 0.7 as moderate functioning, wetlands scoring from 0.71-0.8 as high functioning, wetlands scoring from 0.81-0.9 as very high functioning, and wetlands scoring from 0.91-1.0 as the highest functioning. The asymmetry of the labeling scheme is to allow differentiation among the wetlands in the highest three categories, which, at OFG, are disproportionately represented, as compared to the lowest three categories. The purpose of these descriptors is only to differentiate relative values. As already discussed, the Map F-2 series identifies existing wetlands alphanumerically and by community, and Map I-2 similarly identifies all post-reclamation communities. In contrast to all reclaimed wetlands, which, as already noted, start with an "E" or "W," all existing wetlands start with a "G" or "H." The ease with which freshwater marshes are reclaimed obviates the necessity of extensively analyzing the condition of marshes presently at OFG, absent evidence of atypical habitat value. In general, the wetland corridor of Horse Creek, as defined by the no-mine area, ranges in quality from very high functioning in Section 29, which is the southernmost end of Horse Creek in OFG, to high functioning north of Section 29. However, narrow fringes of this corridor north of Section 29 are low functioning. Starting from the south, in Section 29, three wetlands are outside of the no-mine area: H031/H032/H033/H034, the G005 wetland complex, and a fringe of the wetlands running adjacent to Horse Creek--the western edges of G262, G266, and G259A are outside of the no-mine area. H031 is the largest part of the H031 complex and is mixed wetland hardwoods. H032 is a small freshwater marsh, and H033 is a hydric oak forest of the same size. H034 is a slightly larger wet prairie. H033 is low functioning. The remainder are high functioning. IMC will reclaim the same communities, as an ephemeral wetland complex. Pre-mining and post-reclamation, this wetland drains into West Fork Horse Creek. Considerably larger than H031, the G505 wetland complex is the headwater wetland of Stream 1w. G512 is the largest component of the G505 wetland complex and is wetland forested mixed. G513 is the next largest component and is a bay swamp. G514 is a fringe wet prairie. Slightly larger than G514, G511 is hydric oak forest. G507 is mixed wetland hardwoods, G506 is a small freshwater marsh, and G505 is a cattle pond. The mixed wetland hardwoods and fringe wet prairie are very high functioning, the bay swamp is high functioning, and the remaining wetlands are moderate functioning. IMC will reclaim the G505 wetland complex as a single bay swamp. G262 and G266 are wet prairie and hydric rangeland, respectively. G259A is mixed wetland hardwoods. The wet prairie and hydric rangeland are moderate functioning, and the mixed wetland hardwoods is very high functioning. IMC will reclaim these wetlands as wet prairie. Section 20 contains the headwater wetlands of Streams 2w, 3w, 4w, and 5w. These are mostly marshes, and they are all low to moderate functioning. These systems have been heavily impacted by agricultural uses. IMC will reclaim these as headwater systems, mostly marshes. IMC will also create one small and one medium ephemeral wet prairie near the headwater wetland of Stream 4w. Section 19, which drains to West Fork Horse Creek, contains three wet prairies (H002, H005, and H006) and a complex consisting of a bayhead (H009A) surrounded by a mixed wetland hardwoods (H009), which is fringed by a small wet prairie (H008). These wetlands are all low to moderate functioning. IMC will reclaim the H008 complex with a bay swamp buffered by a temperate hardwood, and it will restore a cattle pond at the site of the H002 complex. The reclaimed bay swamp will drain to West Fork Horse Creek. Section 18 contains a very low functioning, small wet prairie (H056), which is the only wetland in one of the three lowest ranges of WRAP scores outside of the wetland corridor of Horse Creek. Section 18 also contains a small part of a large wetland that is mostly in Section 17. The latter wetland is addressed in the discussion of wetlands in Section 17. Section 17 contains the West and Central Lobes. The entire Central Lobe is in the no-mine area, but a large wet prairie (G188) abuts the wetlands in the no-mine area of the West Lobe. IMC will reclaim this wet prairie, which is low functioning, as improved pasture, with a strip of hardwood conifer mixed. Several wetlands unassociated with the West and Central Lobes are outside the no-mine area, but on either side of Stream 6w, which leads to the West Lobe. G183, which is the headwater wetland of Stream 7w, is a freshwater marsh, which is moderate functioning. IMC will not reclaim the existing portion of Stream 7w upstream of the no-mine area, so the connected headwater marsh will be reclaimed as an ephemeral wet prairie. South of Stream 7w is a group of four small wetlands: G089, G090, G091/G092, and G093/G094. G089 and G090 are very small wet prairies. G091 and G093 are freshwater marshes, and G092 and G094 are wet prairie fringes. G090 is low functioning, and G089 and G091 are moderate functioning. G093 is very high functioning, and G094 is high functioning. Even the maps on the February submittal CD are unclear, but it appears that G089 and G090 will be reclaimed as ephemeral wet prairies. IMC will reclaim G091 as a small freshwater marsh fringed by a large mixed wetland hardwood and G093 as a large freshwater marsh fringed on the east by a small mixed wetland hardwood. The last version of Figure 13B-8 depicts the small freshwater marsh as isolated, but the large freshwater marsh as ephemeral. IMC will also create two small ephemeral wet prairies due south of the West Lobe and one small ephemeral wet prairie just east of the north end of the West Lobe. About one mile west of Horse Creek is a large wet prairie surrounding a smaller freshwater marsh that has been ditched for agricultural purposes. Part of this wet prairie extends into Section 18. The portion of this system in Section 18 is low functioning; the rest of it is moderate functioning. IMC will reclaim this entire area as improved pasture, except for replacing a single cattle pond. Section 16 spans Horse Creek, but mostly covers an area east of the stream, including the East Lobe. The only wetland outside the no-mine area on the west side of Horse Creek is G076/G077, a freshwater marsh fringed by a wet prairie. This small wetland is moderate functioning, and IMC will reclaim it as an ephemeral wet prairie. East of Horse Creek lies Stream 5e and its flow- through wetland, G204/G205. Predominantly a wet prairie, G204 is low functioning. IMC will reclaim it as a bay swamp. A small fringe wet prairie (G177) lies at the south end of the East Lobe, outside of the no-mine area, but it is low functioning, and IMC will reclaim it as hardwood-conifer mixed. A mixed wetland hardwood (G096), which is moderate functioning, fringed by a wet prairie (G097), which is low functioning, lie just north of where the no-mine area of the East Lobe joins the main no-mine area along Horse Creek. IMC will reclaim this wetland as a freshwater marsh fringed on the east by a wet prairie, and this wetland will be connected to the wetlands of the Horse Creek corridor. A freshwater marsh (G058) lies outside the no-mine area just north of the northeast tip of the East Lobe. This wetland is moderate functioning. IMC will reclaim this site as improved pasture, but will create a small ephemeral wet prairie just to the west of G058 and a larger freshwater marsh to the west of the created wet prairie. Section 8 contains two large areas of wet prairie (G048 and G047) at the head of Stream 9w. These wet prairies are moderate functioning, as are a couple of small wet prairies in Section 8 at the western boundary of OFG. IMC will reclaim these areas mostly as improved pasture, although it will create a large, connected wet prairie over the southeastern part of G048, but extending farther to the south and east. This reclaimed wet prairie will form the headwater wetland of reclaimed Stream 9w, which, as already mentioned, will be shortened from its current length. The only other wetland in Section 8 and outside the no-mine area is a freshwater marsh (G052). This marsh is high functioning. IMC will reclaim this site with a marsh and wet prairie. Like Section 16, Section 9 spans both sides of Horse Creek. On the west side of Horse Creek is mixed wetland hardwoods (G055) fringed by hydric woodland pasture (G054). The mixed wetland hardwoods is high functioning, and the hydric woodland pasture is moderate functioning. IMC will reclaim this site with a gum swamp fringed by temperate hardwoods upland. On the east side of Horse Creek, a small wet prairie (G167) is outside the no-mine area. This very high functioning wet prairie is connected to a large bay swamp (G166) to the north. The bay swamp, which is high functioning, lies partly within and partly outside the no-mine area and is connected to the wetland corridor of Horse Creek. Although high functioning, G166 is overdrained by a tile drain system that drains the citrus grove immediately upland and east of G166. Two mixed wetland hardwoods, which are outside the no-mine area, fringe the bay swamp; they are high functioning. IMC will reclaim a gum swamp for the wet prairie and all mixed wetland hardwoods for the east side of the bay swamp. Just north of the bay swamp that straddles the no- mine boundary is a much smaller bay swamp (G163) fringed by mixed wetland hardwoods (G164) that also straddle the no-mine boundary. Also connected to the wetland corridor of Horse Creek, these wetlands are very high functioning, and IMC will reclaim them with pine flatwoods. Between these two bay swamps straddling the no-mine boundary and the headwater wetland of Stream 8e is a small wet prairie (G041), which is moderate functioning and outside the no-mine area. IMC will reclaim this site with another ephemeral wet prairie. At the southern tip of the headwater wetland of Stream 8e is hydric flatwoods (G157), which is moderate functioning. IMC will reclaim this connected wetland with sand pine flatwoods. A smaller hydric woodland pasture (G154) also connects to another section of hydric flatwoods, which is in the no-mine area between the headwater wetlands of Streams 8e and 7e. The hydric woodland pasture is moderate functioning, and IMC will replace it with hardwood-conifer mixed, although IMC will reclaim a somewhat larger area of mixed wetland hardwoods just north of the present site of the hydric woodland pasture, where no wetland presently exists. The remaining wetlands outside the no-mine area in Section 9 are six isolated wet prairies. They are small wetlands, except for G039/G040, which is a wet prairie fringing a cattle pond, and G039, which is at the eastern boundary of OFG. However, they are all high functioning, even the wet prairie fringing the cattle pond. In this general area, IMC reclaims three ephemeral wet prairies, much closer to the no- mine area than the sites of the six isolated wet prairies, and a small freshwater marsh fringed by a community that is not listed in the legend in Map I-2. Interestingly, IMC also reclaims a large area of shrub and brushland and larger area of sand live oak, again closer to the no-mine area than the sites of some of the six isolated wet prairies. The remainder of the area will be reclaimed as improved pasture. Section 4 contains no-mine area in its southeast corner: Stream 2e and the Heart-Shaped Wetland. Almost all of the wetlands outside the no-mine area in Section 4 are in the top three scoring categories of functioning. Of the six wetlands complexes on OFG that are, in whole or in part, highest functioning, four of them are in Section 4. The two highest functioning wetlands outside Section 4 are in the no-mine area, and one of the highest functioning wetlands in Section 4 is in the Heart-Shaped Wetland. Three of the highest functioning wetlands are thus to be mined. Outside of Section 4, there are 14 wetlands or wetlands complexes outside the no-mine area that are in the second- and third-highest scoring categories. These are the mixed wetland hardwoods (H031) in Section 29; a small piece of mixed wetland hardwoods (G259A) straddling the no-mine boundary in Section 29; the bay swamp and mixed wetland hardwoods to the north in the headwater wetland of Stream 1w, which straddles Sections 29 and 20; the freshwater marsh partly fringed by wet prairie (G093) south of Stream 6w in Section 17; the freshwater marsh (G052) connected to Stream 9w and straddling Sections 17 and 8; the mixed wetland hardwoods flow-through wetland (G055) in Stream 9w and straddling Sections 8 and 9; the two bisected bay swamps (G166 and G163) and their mixed wetland hardwoods fringes in Section 9; and the six isolated wet prairies in the northeast corner of Section 9. In Section 4, there are only nine wetlands or wetlands complexes outside the no-mine area that are not in the second- or third-highest scoring categories, and all but two of them--a very small wet prairie fringe (G006) and half of a larger hydric woodland pasture (G105)--are at least moderate functioning. The wetlands in Section 4 fall into three categories: connected to the Stream 1e series, connected to Streams 3e and 3e?, and isolated. The long connected wetland of Stream 1e is mixed wetland hardwoods (G110). This wetland is high functioning, except for the headwater wetland of Stream 1ef, which is highest functioning. A narrow strip of wetland forested mixed (G132) runs along Stream 1ee. This wetland is moderate functioning. Proceeding from south to north, upstream the Stream 1e series, a freshwater marsh (G129) immediately upstream of Stream 1ee is high functioning, as is a smaller freshwater marsh (G125) immediately upstream of Stream 1ed. Two gum swamps (G123 and G121) in the flow-through wetland at the head of Stream 1ed are very high functioning, as is a freshwater marsh (G126) in the same wetland complex. Just downstream of Stream 1ef is a small freshwater marsh (G115) that is high functioning. Part of the mixed wetland hardwoods abutting this marsh to the east is very high functioning. Just upstream of Stream 1eb is the largest wetland complex of the Stream 1e series wetlands system. The largest communities forming this complex are hydric flatwoods (G107) and mixed wetland hardwoods (G110). The mixed wetland hardwoods envelope a small freshwater marsh (G108) and are fringed on the north by a strip of wetland forested mixed (G102). At the northernmost end of this complex is hydric woodland pasture. All of these communities are high functioning except the hydric woodland pasture, which is moderate functioning, and the hydric flatwoods and half of the marsh, which are very high functioning. Working back downstream, IMC will reclaim the mixed wetland hardwoods of the stream corridor, neglecting to replace the complexity provided by the three of the four flow-through marshes (G108, G125, and G129), the larger headwater marsh (G126), and the two gum swamps. IMC will also neglect to replace even the wetland function of the large hydric flatwoods (G107) and smaller hydric woodland pasture, as these sites are reclaimed as upland communities: pine flatwoods and temperate hardwoods, respectively. However, IMC will add complexity by adding a small marsh abutting the temperate hardwoods, two small bay swamps along the west side of the upper end of the Stream 1e series, a band of hydric flatwoods on both sides of part of the upper stream and a thicker area of hydric flatwoods east of Stream 1ed, a moderately sized area of hydric palmetto prairie within the thicker area of hydric flatwoods, and a thickened wetland corridor--mixed wetland hardwood--along Stream 1ee. The long connected wetland of Stream 3e (G137), which is wetland forested mixed, connects to a headwater or flow- through wetland, whose southern component (G136) is also wetland forested mixed. These wetlands are moderate functioning. The remainder of the wetland upstream of Stream 3e is marsh (G135), wet prairie (G134), and mixed wetland hardwoods (G133); they are all high functioning. The narrow wetland corridor of Stream 3e? is high functioning. The headwater wetland of Stream 3e? is a freshwater marsh (G016) fringed on the south by wet prairie (G015) and the north by mixed wetland hardwoods (G014). The mixed wetland hardwoods is moderate functioning; the marsh and wet prairie are high functioning. Working downstream along Streams 3e and 3e?, IMC will reclaim a large freshwater marsh/shrub marsh complex, fringed by wet prairie, at the site of the large headwater wetland of Stream 3e?. In place of the ditch, where IMC will restore Stream 3e?, IMC will probably reclaim mixed wetland hardwoods. (At present, Map I-2 shows improved pasture, but that was before IMC agreed to reclaim Stream 3e?.) IMC will reclaim the wetland complex between Stream 3e? and 3e with the same vegetative communities, except that it will eliminate some of the present system's complexity by replacing the wet prairie with freshwater marsh. Although Map I-2 inadvertently omits any reclaimed wetland community along Stream 3e, Figure 13A5-1 shows reclaimed wetland forested mixed. There are four isolated wetlands in the vicinity of Stream 1e series. At the northern boundary of OFG is a small wet prairie (G027), which is high functioning. Just west of Stream 1ec is a small hydric flatwoods (G118), which is moderate functioning. Just south of this hydric flatwoods is a larger wet prairie (G119) with a small area of hydric flatwoods (G119A), which are both high functioning. Just east of Stream 1ec is a small wet prairie (G028), which is high functioning, even though it is ditched. IMC will reclaim the high-functioning wet prairie (G027) with a freshwater marsh, the small, moderate-functioning hydric flatwoods (G118) with hydric flatwoods and possibly part of one of the bay swamps, the high-functioning wet prairie/hydric flatwoods (G119) with rangeland abutting a freshwater marsh, and the small, high functioning wet prairie (G028) also with the upland community of rangeland. There are four isolated wetlands south and east of Streams 3e and 3e?. The two largest are freshwater marshes (G024 and G021) fringed by wet prairies (G023 and G022, respectively). These are all highest functioning, except that G023 is high functioning. The two smaller wetlands are wet prairies (G025 and G026), which are both very high functioning. IMC will reclaim all four of these wetlands at their present sites with the same communities, except that IMC will replace one very high functioning wet prairie (G026) with improved pasture. North of the headwater wetland of Stream 3e? are five isolated wetlands. The largest is a large freshwater marsh (G004) at the northeast corner of OFG. A wet prairie (G005) fringes the southern edge of this wetland complex, which is ditched. The marsh is high functioning, but the wet prairie is moderate functioning. Two smaller ditched marshes (G008 and G010) lie southwest of this large complex; they are moderate functioning. A small mixed wetland hardwoods (G007) fringed by a narrow wet prairie (G006), which are north of the two marshes, are moderate and low functioning, respectively. The final isolated wetland is a freshwater marsh (G012) fringed by wet prairie (G011) and connected by ditch to the G014 wetland complex. The marsh is high functioning, and the wet prairie fringe is moderate functioning. IMC will reclaim improved pasture at the sites of four of these five wetlands. At the site of the large freshwater marsh (G004), IMC will reclaim a freshwater marsh, which will be fringed by wetland forested mixed. The wetland forested mixed will be fringed by hydric oak forest, which will be fringed by palmetto prairie. IMC will mine 10,566 linear feet of streams, reclaiming 10,919 linear feet. The current condition of these streams has already been adequately addressed, largely by Mr. Kiefer's assessment in the Stream Reclamation Plan, described above. All the tributaries are Class III waters, although, as Deputy Director Cantrell testified, they might not meet all Class III water standards. In fact, it is unlikely, given the level of agricultural alteration, for these tributaries, both within and without the no-mine area, to meet all Class III standards. As Deputy Director Cantrell testified, the unditched streams are the Stream 1e series, Stream 3e, and Stream 5e, although upstream of OFG, Stream 5e and its headwater wetlands have suffered extensive agricultural impacts. With the exception of the Stream 1e series and probably Stream 3e, elevated levels of turbidity and nutrients and reduced levels of dissolved oxygen are to be expected in the water of the tributaries on OFG due to the extensive ensuing erosion and low- flowing characteristics of these streams. Mining Ditch and Berm System Six months prior to the commencement of mining of each block, IMC will construct a ditch and berm system between the block and the adjoining no-mine area. The ditch and berm system captures the stormwater runoff that would otherwise leave the mine site and releases the groundwater that would otherwise remain at the mine site. The phosphate mining industry began using ditch and berm systems during mining in the late 1980s and early 1990s. IMC has designed the ditch and berm system to capture the water from the 25-year, 24-hour storm event with several feet of freeboard. For storms not in excess of the design storm, the ditch, which runs between the berm and the mine cut, will carry water around the perimeter of the mining block. During periods of high rainfall, IMC will pump the water in the ditch into the mine recirculation system to prevent unintended discharges. When the mine recirculation system reaches its capacity, it releases excess water into Horse Creek upstream of OFG at two outfalls that have already received National Pollutant Discharge Elimination System (NPDES) permits for use with the Ft. Green beneficiation plant. Maintained during all phases of mining operations, ditch and berm systems have effectively protected water quality during mining operations. The only indication in this record of a breach of a ditch and berm system has been one designed to meet older, more relaxed standards. The other function of the ditch and berm system is to dewater the mine site and restore the water table to nearby wetlands in the no-mine area. The removal of the water from the surficial aquifer at the mine cut effectively lowers the water table by, typically, 52 feet, which is the average depth of the excavation at OFG. Lowering the water table in the mine cut by any sizeable amount creates a powerful gradient, which draws more water from the unmined, adjacent surficial aquifer to fill the void of the removed water. Unchecked, this process would fill the mine cut with water so as to prevent mining operations and empty nearby wetlands of water so as to deprive them of their normal water levels and hydroperiods. To prevent these diversions of the unmined surficial aquifer from taking place, pumps send the groundwater entering the mine cut into the mine recirculation system and ditch. To maintain adequate groundwater flow from the ditch into unmined wetlands, the ditch must maintain adequate water levels. While constructing the ditch and berm system, IMC will construct monitoring wells between the ditch and the wetland or surface water, which will indicate when groundwater flows are less than the pre-mining flows, for which IMC will have already collected the data. Varying permeabilities of adjacent soils or inadequate maintenance of the ditch may cause the system to fail to maintain the proper hydration of nearby unmined wetlands. Due to failures of its ditch and berm system, IMC has several times dewatered nearby wetlands. Recent failures occurred at the East Fork Manatee River in November or December 1999, the North Fork of the Manatee River in March 2000, and two more recent failures at the Ft. Green Mine. To maintain the ditch and berm system, an inspector will daily drive a vehicle along the top of the berm to check the berm and the water level in ditch. However, recharge wells are also necessary to ensure that the ditch and berm system prevents the dehydration of unmined wetlands is recharge wells. Recharge wells would reduce the frequency and extent of wetland drawdowns. Strategically located throughout the length of the ditch, recharge wells would be drilled into the bottom of the ditch to the intermediate or Floridan aquifer. By this means, recharge wells actively maintain appropriate water levels in the ditches and prevent drawdowns. IMC has several alternative sources for the water for these recharge wells: the water pumped from the surficial aquifer during the dewatering of the mine, the groundwater that has returned to areas already backfilled with sand tailings, or the water from the mine recirculation system, provided it is filtered. Notwithstanding testimony to the contrary, neither the CRP approval nor the ERP requires IMC to install recharge wells. These documents fail to impose upon IMC any specific action, if the monitoring wells reveal reduced or eliminated groundwater flows into the wetlands and surface waters. Both documents acknowledge the possibility that IMC may need to install recharge wells to recharge the ditch. In his testimony, Dr. Garlanger recommended the installation of floats on the top of each recharge well to allow the inspector visually checking the ditch and berm readily to check each recharge well at the same time. Clearly, the presence of floats atop recharge wells would allow early identification and repair of malfunctioning recharge wells, prior to the loss of water from the ditch and the dehydration of nearby unmined wetlands. 2. Mine Recirculation System In addition to recycling the water used in mining operations, the mine recirculation system draws on sources deeper than the surficial aquifer, as well as rain. Water leaves the mine recirculation system through evapotranspiration and surface runoff. When water leaves the system as runoff, during or after major storm events, it does so through NPDES outfalls, and the high water volumes associated with the storm generally assure that any contaminants in the discharged water are sufficiently diluted. 3. Sand Tailings Budget For OFG, IMC has presented a reasonable sand tailings budget. Dr. Garlanger, whose expertise in geotechnical matters finds no match on the opposing side, has opined that the supply is ample. Charlotte County and the Authority have challenged the adequacy of the sand tailings budget. In part, Charlotte County and the Authority base their challenge to the sand tailings budget in part on an earlier comment by Dr. Garlanger concerning changing volumes of sand tailings, but he adequately explained that their reliance was misplaced. As noted above, the sand tailings budget at OFG requires sand from the Four Corners and Ft. Green mines. Conjuring up images of a sand Ponzi scheme, Charlotte County and the Authority seem to argue, in part, that there are not enough sand tailings, and DEP has allowed phosphate mining companies that have run out of nearby sand to substitute a Land-and-Lakes reclamation for the more sand-intensive reclamation that had originally been permitted and approved. OFG is early enough in the post Land-and-Lakes reclamation era that, if sand tailings from post-reclamation excavations are being moved around, OFG will get them. The obligation imposed upon IMC to obtain sand tailings backfill is not contingent upon feasibility; IMC must backfill the mine cuts with sand. The possibility that DEP would allow OFG to abandon one of the central tenets of this reclamation project by substituting Land-and-Lakes reclamation for topographic replication is inconceivable. Reclamation BMR Reclamation Guidelines BMR program administrator James (Bud) Cates supervises reclamation by the phosphate mining industry. Mr. Cates and Janine L. Callahan, also of BMR, prepared a document entitled, "Guidelines for the Reclamation, Management, and Disposition of Lands within the Southern Phosphate District of Florida" (Reclamation Guidelines). The document is dated August 2002. Although it is marked, "draft," Reclamation Guidelines is a revision of the first draft, which was prepared in 1993. The Administrative Law Judge commends the authors and DEP for the close attention to detail that has resisted finalization for nine years, but it would be imprudent to disregard the second draft while awaiting the next novennial revision, especially when DEP offered it as an exhibit (DEP Exhibit 37). Consistent with an emphasis on functional analysis and the creation of vegetative, hydrologic, and soils conditions that facilitate self-organization, Reclamation Guidelines defines "reclamation" as: the attempt to identify and replace those components/parameters of a community, resulting in the creation of a functional natural community analog. Emphasis is placed on the creation of functional soil, hydrology, and floral precursors that serve as the basis for food-web development. Because of the ecological need for fully functional communities, analogs are typically designed on a whole habitat basis rather than being designed around the specific needs of one or two species. These analogs are designed to incorporate a maximum initial diversity potential, based upon the premise that with proper management, the initial input will yield, over time, maximum ultimate diversity. Reclamation plans for and the activities used to create these replacement communities will be guided by existing knowledge of earthmoving, soils, hydrology, vegetation, general ecology, and wildlife management. Data in every applicable field should be constantly collected and used to increase knowledge and improve the results of the reclamation of natural community analogs. Focusing on specific reclamation techniques for soils, Reclamation Guidelines adds: The use of Topsoil/Vegetative Inoculum (T/VI) is extremely important to the introduction of organic matter, soil microbes, mycorrhizae, and plant propagules. These factors are critical to the creation of a living soil precursor. The T/VI is also the best known source of plant propagules that will provide the diversity inherent in a given community. Therefore, to the extent of material availability and economic feasibility, T/VI is recommended for use in the replacement of natural community analogs. The goal should be a three to six inch average depth with a minimum depth of no less than one inch over the base of sand, overburden, or sand/overburden mixture. Where T/VI availability problems occur, an artificially created topsoil precursor may be used in combination with all available T/VI or as a replacement for T/VI. Topsoil precursor may be created by incorporating a mixture of overburden, clay, and organics (hay mulch, wood chips, manure, green manure, or combinations thereof). All artificially created topsoil precursors should contain an organic portion and should be treated with microbial and mycorrhizal inoculum. For Sandhill, which has the least burdensome requirements among the three habitats most analogous to sand live oak (sand pine scrub, xeric oak scrub, and sandhill), Reclamation Guidelines notes that the objective is to concentrate a "deep layer of well-drained sands around/upon a topographic high to prove an area of rapid, positive infiltration and positive down-gradient seepage." The reclaimed sandhill habitat is adapted to excessively drained sands and requires "substantial depth to water table (although not as excessive or deep as scrub)." For soils, Reclamation Guidelines offers two options: six to eight feet of sand tailings covered with a layer of T/VI from a suitable donor scrub or eight to ten feet of sand tailings covered with a minimum four inch layer of artificially created topsoil precursor. For sand pine scrub and xeric oak scrub, the soil requirements are the same, except that the first option is for sand tailings eight to ten feet deep, not six to eight feet deep. As already noted, CRP Specific Condition 8.b requires IMC to reclaim sand live oak and xeric oak scrub with "several feet" of sand tailings and three to six inches of topsoiling from donor scrub or, if topsoiling is not feasible, the seeding and disking of a green manure crop. (Although omitted, the feasibility condition presumably qualifies the topsoiling requirement because Specific Condition 8.b defines "feasible.") For Pine Flatwoods and Dry Prairie, Reclamation Guidelines notes that the objective is to locate these communities on moderately to poorly drained soils, so that the depth to the water table is moderate to shallow. Most vegetation of these two communities is adapted to predominantly sand soils. For soils, Reclamation Guidelines offers two options: two to four feet of sand tailings covered with a layer of T/VI from a suitable donor flatwoods/dry prairie area or two to four feet of sand tailings covered with a minimum four inch layer of artificially created topsoil precursor. As already noted, CRP Specific Condition 8.a requires IMC to reclaim pine flatwoods and dry prairie with a minimum of 15 inches of sand tailings and three to six inches of transferred or stockpiled topsoil, if feasible, or, if not, the seeding and disking of a green manure crop. For Wetland Mixed Forest, Reclamation Guidelines notes that this community will occupy the outer limit of the floodplain down to the stream channel and the forested edge of deeper marshes. Likely to receive runoff from major storm events, Wetland Mixed Forest should be designed to contain and slow runoff while maintaining sufficient water for wetland viability. For soils, Reclamation Guidelines offers three options: decompacted overburden to a depth below the dry season water table overlying by a layer of T/VI from an appropriate donor site, two to three feet of sand tailings under a layer of T/VI, or either overburden or two to three feet of sand tailings covered by a minimum of four inches of artificially created topsoil precursor. As already noted, ERP Specific Condition 14.b requires IMC to reclaim all forested wetlands by backfilling with sand tailings or overburden to an unspecified depth under "several inches of wetland topsoil," if feasible. However, for bay swamps, Specific Condition 14.b adds in boldface: "All reclaimed bay swamps shall receive several inches of muck directly transferred from forested wetland approved for mining." Reclamation Guidelines treats Bay Swamp (and Cypress Swamp) separately from other forested wetlands. Noting that Bay Swamps are in areas of significant surficial seepage or high average groundwater elevation, Reclamation Guidelines states that Bay Swamps require sufficient seepage to remain saturated or a deep organic profile at and below the average water table elevation. For soils, Reclamation Guidelines states: "Bay swamps require the placement of one to three feet of organic muck as a depressed lens. The muck should be obtained from a suitable donor wetland." For Non-Forested Wetland, which includes wet prairies and freshwater marshes, Reclamation Guidelines is of value more to identify why the phosphate mining industry and DEP have overseen the routine reclamation of deeper wetlands, but not shallower wetlands. Treating these two very different communities under the same category, Reclamation Guidelines states: "All of the sub-categories may be constructed on overburden, with the exception of sand pond." Although the overburden option for reclaimed forested wetlands seems a stretch, given repeated problems of mature tree growth into overburden relatively close to grade, the overburden option for reclaimed wet prairie, other than fringing deeper marshes when properly sloped, can no longer merit serious consideration, given only one successful, extensive shallow-wetland reclamation site--SP(2D), whose reclaimed soil is four inches of mulched topsoil overlying four feet of sand tailings. However, consistent with its Reclamation Guidelines, DEP did not differentiate between wet prairies and deep marshes in the soil-reclamation requirements contained in the ERP. ERP Specific Condition 14.c allows backfilling with sand tailings or overburden and requires only "several inches of wetlands topsoils when available." Tellingly, Reclamation Guidelines divides aquatic systems into two categories: shallow (less than six feet deep) and deep. Shallow systems comprise swamps, marshes, sloughs, and ponds, but not streams. Nowhere does Reclamation Guidelines explicitly address the reclamation of streams. Comparing the soil-reclamation requirements that DEP has imposed on IMC in the CRP approval and ERP to the soil- reclamation specifications stated in BMR's Reclamation Guidelines, material discrepancies emerge as to the depth of sand tailings underlying four upland communities. If IMC transfers topsoil, sand live oak communities require at least six feet of sand tailings, not "several" feet; if IMC uses green manure, sand live oak communities require at least eight feet of sand tailings. Regardless whether topsoiled or green manured, xeric oak scrub communities require at least eight feet of sand tailings, not "several" feet. Regardless whether topsoiled or green manured, pine flatwoods and palmetto prairie require at least two feet of sand tailings, not 15 inches. There is a material discrepancy between the ERP and Reclamation Guidelines as to bay swamps. Reclamation Guidelines specifies one to three feet of organic muck for reclaimed Bay Swamps. ERP Specific Condition 14.b requires only "several inches of muck." Given the poor record reclaiming bay swamps, DEP, in forming this condition, is not relying on any experience-based knowledge that it has acquired, or, if it is, it did not add this information to the present record. There is no discrepancy as to wet prairies, but this is clearly due to a shortcoming in Reclamation Guidelines, at least as to non-fringe wet prairies. Under Reclamation Guidelines, wet prairies, at best, will continue to reclaim only as fringes, and only then if the edges of deeper wetlands have shallow slopes. Given the otherwise-uniform failure to reclaim extensive shallow wetlands, the actual soil regime at SP(2D) of four feet of sand tailings under four inches of topsoil must set the minimum soil criteria for wet prairie. 2. Geology and Soils For purposes of this Recommended Order, soils occur predominantly in the first two meters of the earth's surface. Below that depth, geologic characteristics predominate, so this Recommended Order refers to these deeper structures as geology. Post-reclamation, all of the soil and the top 45-50 feet of the geology are a product of IMC's reclamation activities. The post-reclamation geologic characteristics follow from the mining process, which deposits overburden within the mine cut in two locations. Most of the overburden is deposited in spoil piles within the cut. Some of the overburden is piled against the sides of the mine cut to reduce the seepage of water from the surrounding surficial aquifer into the cut. Both types of overburden are sometimes called "cast overburden." At OFG, prior to backfilling, the creation of cast overburden spoil piles will either leave alternating bands of sand tailings valleys and cast overburden spoil piles, each 330 feet wide, or each 165 feet wide; the record is not entirely clear on this point. The scenario with the greater hydrological impact is that each valley and the base of each spoil pile is 330 feet wide, but, even under this scenario, relatively little backfilled area would have less than five feet of sand tailings. If each sand tailings valley is 330 feet and each cast overburden spoil pile is also 330 feet at its base, the profile of each cast overburden spoil pile would appear to be a two- dimensional pyramid with its top cut off just below midpoint along its two slopes. The sides of the spoil piles of cast overburden are not perpendicular to the surface, but are sloped at about 1.5:1, according to Dr. Garlanger. Rounding off the depth of the mine cut to 50 feet, this 33-degree slope would travel 50 feet vertically at the point at which it had traveled 75 feet horizontally. Matching this slope with another on the other side of the spoil pile, 150 feet of the 330-foot wide overburden spoil pile would be consumed by the sloped sides, and 180 feet would be a plateau, at a constant elevation of 50 feet above the bottom of the mine pit. Adding 7.5 feet on either side of the plateau gains a depth of 5 feet, so the width of overburden under less than five feet of sand tailings would be 195 feet. Under the less-favorable scenario, for a 660-foot wide band of reclaimed geology, without regard to topsoil additions, the sand tailings, for the above-described 660-foot slice, will be at least 10 feet deep for a distance of 450 feet, or 68 percent of the reclaimed area, and will be at least 5 feet deep for a distance of 475 feet, or 72 percent of the reclaimed area. Adding the U-turns at the end of the rows would add only a little more area to the 28 percent of the reclaimed area with an overburden plateau within five feet of the surface. If the cast overburden spoil piles fill only half of each 330-foot wide cut, then the overburden plateaus would be much narrower. Each sand valley of 165 feet would abut a 33-degree slope that would again run 75 feet horizontal while climbing 50 feet vertical. Two of these slopes would consume 150 feet horizontal, leaving an overburden plateau of only 15 feet, leaving much less land with an overburden plateau within five feet of the surface. The shaping of the overburden that precedes the backfilling, the backfilling of sand tailings, and the transfer of topsoil are aided by substantial technological improvements in earthmoving equipment in recent years. Most importantly, earthmoving equipment has incorporated global positioning systems, so that they can now grade material to a tolerance of two centimeters, as compared to tolerances of six inches and one foot not long ago. This achievement permits the reclamation scientists to supervise backfilling more closely so as to replicate the design topography, which is a necessary, although not sufficient, condition of successful establishment of targeted hydroperiods and inundation levels. IMC soil scientist Joseph Schuster and Mr. Carter both presented detailed, well-documented testimony and are both competent soil scientists. They start from the same point, which is that pedogenesis, or soil formation, is a function of five factors: parent material, relief, climate, vegetation, and time. From there, they travel separate paths in their analysis and conclusions concerning the soil aspects of IMC's reclamation plan. In the successful reclamation of soils, Mr. Schuster highlights the creation of appropriate drainage characteristics, and Mr. Carter highlights the creation of appropriate soil horizons, although both experts acknowledge the importance of both these factors, and others, in soil formation and function. Their reasoning seemed mostly to be a question of differing emphases, although their conclusions were mutually exclusive. As already noted, the A horizon is the topsoil layer. (A mucky wetland may have an O horizon.) There is some variability among horizons--for example, the C horizon, which is described below, may occur immediately beneath the A horizon, especially in sandy material. But, for this part of Florida, typically, the E horizon forms under the A horizon. The E horizon is a leaching zone, through which rainwater transmits substances from the A horizon down to the B horizon, which is the accumulation zone beneath the E horizon. Florida typically has two types of B horizons: the Bh (or spodic) horizon, which is composed of loamy or spodic materials, and the Bt (or argyllic) horizon, which is composed of clayey materials. The spodic horizon is a mineral soil horizon containing aluminum and organic carbon, and possibly iron, which formed in a much colder climate, probably at least 10,000 years ago. Spodic horizons typically occur in the top two feet of the soil profile. Although spodic horizons may occur as deep as 40 feet, they occur at OFG within 20 inches of the surface, sometimes within only 10 inches. Beneath the B horizons is the C horizon, which is the parent material for pedogenesis. For the most part, Mr. Schuster's emphasis on reclaiming appropriate drainage is credited as the single most important factor in reclamation, and his seven drainage categories are ample for guiding the reclamation of the drainage characteristics of soils. More reclamation failures may necessitate the implementation of one of Mr. Carter's suggestions to carefully restore the soil horizons within the top two meters of the mine cut, as it is backfilled, or to use more clayey soils, such as those from drained CSAs, to add more nutrient-retaining capacity to the B and C horizons than nutrient-poor sand tailings provide. Mr. Carter's soil cores from reclamation sites, which reveal overburden close to the surface, presented stark contrasts to soil cores of native soils in the area, although drainage concerns outweigh pedogenic concerns. Mr. Carter correctly points out that, from a soils perspective, pre-mining overburden is not post-reclamation overburden. From a mining perspective, what lies above the unmined phosphate ore is overburden, and what lies in the ground, post-reclamation, is also overburden, which, to a certain depth, is dominated by characteristics of the B horizon and underlying C horizon. However, in a 52-foot deep phosphate mine, as opposed to typical road construction, which Mr. Schuster unpersuasively offered as a comparable, the overburden is ultimately dominated by geologic material from below the C horizon. From a soils perspective, what lies in the unmined ground are soil horizons that took many years to form, and what lies in the ground, post- reclamation, is nothing but an admixture of former soil horizons and geologic material that normally resides a little deeper in the earth's crust. As Mr. Carter notes, the result, post- reclamation, is less like soil and more like unconsolidated soil material with little horizonization even several years after reclamation, and, if an overburden layer is present close to the surface, it typically is tightly compacted. Soil horizons are not an incidental or random characteristic of undisturbed soils; soil horizons are an important component in the formation and functioning of soil. Mr. Schuster himself disclaims reliance upon overburden epipedons--which are organically influenced horizons typically above the B horizon--in the restoration of native ecosystems, although he does not object to the presence of such epipedons in agricultural restoration. If sand were displaced by overburden in the area of the E horizon, the E horizon will be unable to contribute to the formation of the B horizon, as it must, especially after the comprehensive disturbance of all soil horizons contemplated at OFG. Mr. Schuster's disclaimer bodes ill for the ERP provisions allowing overburden as an alternative to sand tailings for forested and herbaceous wetlands. However, Mr. Schuster's disdain for cast overburden near the surface is well-founded. His emphasis on drainage over soil horizons, including even overburden epipedons, may find support at Dogleg, which, according to the CDA, suffered the loss of its 12-inch topsoil layer due to oxidization and was left with overburden of a "clayey sand" texture that may have been more permeable than typical, less permeable overburden. This loss appears to have taken place over sufficient time that other conditions may have commenced to form an A horizon. However, when adjacent mining ended and the water table re-established itself, the reclaimed trees began to survive. Mr. Schuster accounts for the importance of pedogenesis, in addition to drainage characteristics, by identifying the topsoil/green manure, sand, and overburden as analogs of soil horizons. Certainly, the topsoil/green manure is a functional analog, and its thickness is not much of a variable. Sand tailings provide an appropriate texture for an A horizon. But the variability of the depths of sand tailings limits the force of Mr. Schuster's argument for functional analogs. For all wetland communities, overburden may occur at depths of only several inches, and, for pine flatwoods and palmetto prairies, overburden may occur at depths of 15 inches. Or sand tailings may be over 50 feet deep, atop a clay confining layer, not overburden. Setting aside the problem with the variability of depths of sand tailings, it is possible to treat sand tailings as a functional E horizon, through which materials will leach from the A horizon and into the B horizon, which is the zone of accumulation. However difficult it may be to cast the sand tailings in the role of a B horizon, it is impossible to cast them in the role of a C horizon. Ignoring the considerable amount of geologic material contained in cast overburden and possible textural issues, Mr. Schuster plausibly offers overburden as good B and C horizon material because of its higher clay or spodic content. Thus, the apparent impairment of pedogenesis may not be as extensive as first appears, provided overburden remains below the A and E horizons. Still, mining and reclamation, at least as designed for OFG, mean the loss of some soil functions for extensive periods of time, but proper reclamation of drainage characteristics and hydrology sufficiently mitigate these losses of function. Even Mr. Schuster's emphasis on drainage is not unconditional, as he relies on the application of topsoil or the implementation of a green-manure process to provide an immediate A horizon and accelerate the process by which the A horizon continues to form. Endorsed by Mr. Carter as a good idea to increase organic material and loosen the structure of the topsoil, green manure is the process by which a quick-growing cover crop is planted on the finished surface, post-reclamation. The crop is then disked into the soil to provide a quick infusion of nitrogen and organic matter. This approach has not previously been used in reclamation following phosphate mining, but it has been used in other applications and is effective. Post-reclamation, fire too will pump nutrients into the A horizon. Herbaceous wetlands, with their shallower roots, ought to be adequately served by Mr. Schuster's focus on the drainage characteristics of reclaimed soils. Forested wetlands present a different challenge due to their deeper root systems. Past reclamation of forested wetlands has experienced tree loss after several years of growth, possibly indicative of a problem with root development beyond a certain depth. Perhaps the roots cannot penetrate the overburden or cannot find the necessary nourishment, after penetrating the overburden; however, it is at least as likely, given the record of reclamation, that the mitigation site suffered from a poorly reclaimed water table, so that, for example, the water table was too high for too long, perched, or even too low for too long. Given the repeated problems with establishing appropriate water tables, post-reclamation, this factor looms as a likely explanation for tree die-off. However, Mr. Schuster's emphasis on drainage characteristics over pedogenic conditions carries more weight as to herbaceous wetlands and xeric habitats, where sandy soils predominate to relative great depths, and somewhat less weight as to forested wetlands. Mr. Schuster's emphasis on drainage over pedogenesis carries even less weight as to pine flatwoods and palmetto prairies, which are less tolerant to the disturbance of the spodic horizon in reclaimed soils. Obviously, overburden presents different textures and drainage characteristics than do native flatwoods soils. However, pine flatwoods and palmetto prairies are more dependent upon higher water tables than more xeric upland communities, so, again, past problems in reclaiming these upland communities again likely involve the failure to create an appropriate water table, post-reclamation. Differences between Mr. Schuster and Mr. Carter were harder to reconcile regarding the role of pH in soil. Mr. Schuster and Mr. Carter reached different results in field tests of soil pH. However, Mr. Schuster's testimony is credited that most ecosystems tolerate a wide range of pH, and the most important soil characteristic remains its drainage characteristics. Hydrology Introduction Removing and replacing the topography, soils, and geology, including the surficial aquifer, to a depth of 52 feet, under nearly 3500 acres of land necessitates hydrological analysis. Hydrological analysis is necessary to support three sets of projections: the streamflows of Horse Creek, downstream of OFG, during mining and after reclamation; hydroperiods and inundation depths of reclaimed wetlands, as the wetlands created in the reclaimed topography and soils fill and empty with water based on inputs and outputs from runoff and groundwater, inputs from rainfall, and outputs from evapotranspiration; and peak discharges from OFG, during mining and after reclamation. All hydrological analysis must account for the water budget, which balances the inputs and outputs of water. The elements of the water budget are rainfall, runoff, percolation (or infiltration), evapotranspiration, deep recharge (the recharge of the deeper aquifers), and groundwater outflow. Rainfall is the most important factor because it is the sole means by which water enters the system. Equal to the total of the outputs, annual rainfall is a large number, typically measuring in this part of Florida in excess of 50 inches. Rainfall is also a variable number in two respects. It varies from year to year. For the Peace River basin, annual rainfall from 1933 to 2002 has ranged from 35.89 inches to 74.5 inches with an average of 52.4 inches. However, rainfall in the Peace River basin has varied over eras. From 1933 to 1962, average annual rainfall was 55.48 inches. From 1962 to 2002, average annual rainfall was 51.02 inches. For the Peace River basin, the average annual rainfall has decreased about 4 1/2 inches in the past four decades when compared to the preceding three decades. Especially over shorter time intervals, rainfall also varies considerably from location to location within a relatively small area. Subject to these variabilities, especially the distance of the rainfall gauge to the location for which the water budget is constructed, rainfall is easily measured by rainfall gauges. Measurement means straightforward collection of data without elaborate modeling, calculation, or simulation. After rainfall, the most important element in the water budget is evapotranspiration, which is the combined effect of evaporation of water from soil, plant surfaces, wetlands, and open water and transpiration of water through vegetative processes. In this part of Florida, evapotranspiration releases about 75 percent of the rainfall back into the atmosphere, which, by convention, counts as a loss to the system. Unlike rainfall, evapotranspiration typically cannot be measured, except that the maximum evaporation, which is a pan containing water in the direct sun, is subject to direct measurement. Hydrologists have measured evapotranspiration from irrigated golf courses at 58-62 inches annually, and Dr. Garlanger has measured evapotranspiration from reclaimed CSAs at 39-41 inches annually, although both of these measurements may have been somewhat indirect. However, hydrologists widely recognize ranges of evapotranspiration for this part of Florida for different land uses. Annual rates of evapotranspiration for open water is 49-1 inches, for riparian wetlands is 47-49 inches, and for isolated wetlands is 43-44 inches. The annual evapotranspiration for pine flatwoods is 37-39 inches and for xeric uplands is 34-36 inches. Impervious surface, such as pavement or a roof, produces only 8-10 inches annually--absent weeds, all evaporation. In addition to land use, the amount of water available controls the amount of evapotranspiration. Elevations of the water table will affect evapotranspiration. Thus, hydrologists often measure potential and actual evapotranspiration. Anthropogenic impacts may increase or decrease evapotranspiration. Net additions of impervious surface, such as parking lots, roads, and rooftops, increase runoff and decrease evapotranspiration. Net additions of open water, such as lakes, ponds, and streams, decrease runoff and increase evapotranspiration. At the other end of the spectrum, deep recharge removes very little water at OFG. Even during mining, when the impacts would be greatest due to high withdrawals, the increase to deep recharge is 30-60 gallons per minute--insignificant as compared to the average recharge rate in the Peace River basin of 190,000 gallons per minute. In fact, according to RAI-192 in the CDA, rainfall, not deepwell water, is the primary source of water for the mine recirculation system. Deep recharge is typically one inch annually, although Charlotte County hydrologist Phillip Davis, in one of his scenarios, claimed that 2.5 inches of water annually would enter the intermediate aquifer from the surficial aquifer. This range of values for deep recharge is within the specified ranges for most types of evapotranspiration. Deep recharge cannot be directly measured. The record does not suggest much variability in deep recharge, which is controlled by the elevation of the water table and potentiometric surface of the Florida Aquifer, in undisturbed geologic systems in this part of Florida. Although the replacement of part of the confining layer between the surficial and intermediate aquifers could affect deep recharge, the potential impact at OFG appears to be very small due to the permeability of the matrix layer and impermeability of the clay bed beneath it. However, historic anthropogenic disturbances may have increased deep recharge. All groundwater withdrawals induce recharge, at least of the surficial aquifer. Withdrawals from the deeper aquifers, such as those taken by the phosphate mining industry prior to expanded recycling, could have caused increased rates of deep recharge, depending on the confining layers above the Floridan Aquifer within the area influenced by the withdrawals. To the extent that the effect of these deep withdrawals extended to the surficial aquifer, evapotranspiration and streamflow would have been reduced. Groundwater outflow has been measured in this area by Bill Lewelling of the U.S. Geologic Service. (Mr. Lewelling seems to have measured groundwater outflow indirectly by measuring chloride concentrations at different locations.) He found a range of 1.7-17.9 inches annually with an average of 9.2 inches annually. An important component of groundwater outflow, infiltration depends on soil type and antecedent saturation, so it is variable in terms of location and climate. However, it appears to vary within a relatively narrow range at OFG, pre- mining. One combination of water-budget elements that may be measured easily is streamflow, which, as noted above, is a combination of the runoff and groundwater outflow reaching the stream. Streamflow equals rainfall minus evapotranspiration minus deep recharge minus the change in uplands storage. For the purposes of Dr. Garlanger's analysis, uplands are everything, including wetlands, above riparian wetlands, and riparian wetlands are the area adjacent to a stream channel that remain perennially wet and are typically within the 25-year floodplain. Streamflow is not variable like rainfall as to location because the river or stream is fixed and so is the location of the gauge, but streamflow is highly variable as to volume, even from year to year. For Horse Creek at State Road 64, for example, annual streamflow from 1977 to 2001 has averaged 9.7 inches, but has ranged from one inch to 17 inches. For the Peace River at Arcadia, annual streamflow from 1950-1962 was 13.25 inches or 1334 cfs. From 1963 to 2002, average streamflow at the same location was 8.78 inches or 884 cfs. The SWFWMD has not yet set minimum flows and levels for the Peace River, but is presently in the process of setting these values. In these cases, streamflow is most often calculated to compare a model's output in streamflow to measured values for the same period of time, to determine streamflow for locations without a streamflow gauge, or to determine streamflow for locations with a streamflow gauge, but after changes in land use, such as the construction of a ditch and berm system or post-mining reclamation. Another combination of water-budget elements that can be measured, although with more difficulty than streamflow, is the water table. Most water table data are fairly recent, dating from the early 1990s. Mr. Davis testified that the water table data available for OFG were the most limited that he had ever encountered. Varying daily, the water table is the top of the surficial aquifer. The elevation of a non-perched water table, at any given time, is ultimately driven by all of the elements of the water budget, but is immediately reflective of surficial aquifer inputs and outputs and hydraulic conductivity. Hydraulic conductivity is the ability of a porous medium to transmit a specific fluid under a unit hydraulic gradient, so it is highly dependent on the physical properties of the medium through which the fluid is transmitted. Although hydraulic conductivity exists in the horizontal and vertical planes, this Recommended Order considers only horizontal hydraulic conductivity. Hydraulic conductivity is an important hydrological factor that can be measured, at least horizontally, although with difficulty. Hydraulic conductivity varies by location due to the variations in permeability of the geological structure through which the groundwater is passing. The hydraulic conductivity of sand tailings is about 38 feet per day, and the hydraulic conductivity of cast overburden is about one foot per day. Native soils are typically somewhere in between these two extremes. In one area, the matrix, pre-mining, had a permeability of 5-15 feet per day. IMC's assurances concerning streamflow, wetlands hydroperiod and inundation depths, and peak discharges must be assessed against three different backdrops. At one extreme, at least based on the present record, phosphate mining and reclamation, as distinguished from other phases of phosphate processing, have not caused adverse flooding; the sole example of flooding from a failed ditch and berm system--designed to meet more relaxed standards--occurred at the Kingsford Mine on January 1, 2003, and no serious environmental damage occurred. At the other extreme, reclamation after phosphate mining has routinely failed to reclaim targeted hydroperiods and inundation depths for shallower wetlands and many forested wetlands. In between these two extremes, although closer, at least recently, to the industry's flooding experience, is streamflow. Historic impacts to the Peace River are considered below, but an example of the minimal impact on streamflow of recent mining is found in the last 15 years' mining of the upper reaches Horse Creek. During this period, the streamflow of Horse Creek at State Road 64 has remained unchanged. The record does not support Mr. Davis's suggestion that high volumes of groundwater pumping and high volumes of NPDES discharges artificially added streamflow during this period. Resolution of the hydrological evidence in these cases requires close examination of the testimony of Dr. Garlanger, who addressed all three areas for IMC; Mr. Davis, who addressed streamflow and wetland hydroperiods and inundation depths for Charlotte County; and Mr. Loper, who addressed peak discharges for Charlotte County. All three of these witnesses are highly competent and patiently and thoroughly explained their hydrological analyses. Mr. Loper proved adept at finding flaws in IMC's analyses of peak discharges. Dr. Garlanger and his staff several times refined their work, even during the hearing, to incorporate Mr. Loper's findings. Differences remained between Mr. Loper and Dr. Garlanger, and, although it is possible that Mr. Loper is correct on these remaining points, Dr. Garlanger successfully discounted the importance of Mr. Loper's objections in projecting peak discharges. Examining the evidence in the backdrop of a record almost devoid of failures that have resulted in flooding, it proved impossible not to credit Dr. Garlanger's assurances about peak discharges. Mr. Davis was less successful in finding flaws in IMC's analysis of streamflow, or at least in finding material flaws. As detailed below, his theory attributing to phosphate mining a greater share of historic reductions in the streamflow of the Peace River seems less likely than Dr. Garlanger's theory attributing a lesser share of these historic reductions to phosphate mining. Mr. Davis substituted an integrated simulation model for Dr. Garlanger's uplands model and spreadsheet. The advantages of Mr. Davis's model emerged to a greater extent in simulating wetlands hydroperiods and inundation depths, not in simulating streamflows. This is discussed in detail below. The conflict between Mr. Davis and Dr. Garlanger over the ability to reclaim targeted hydroperiods and inundation depths has proved very difficult to resolve. Dr. Garlanger has vast experience in the phosphate mining industry and thus a clear advantage in projecting, as he has since 1974 at several hundreds of projects, peak discharges and streamflow. But this experience is no advantage as to projecting wetland hydroperiods and inundation depths. Dr. Garlanger did not state that he has projected hydroperiods and inundation depths for 30 years at several hundreds of projects. If he has done so, he has contributed to the numerous failures, described above, of reclaiming shallow wetlands. More likely, the phosphate mining industry has infrequently targeted shallow wetlands for reclamation, so Dr. Garlanger does not have extensive experience in creating the necessary hydroperiods and inundation depths for shallow wetlands. The reclamation of specific hydroperiods and inundation depths for shallow wetlands is likely a fairly recent development, perhaps due to the relaxed restoration expectations of earlier eras or the inability of earthmoving equipment to execute fine specifications in finished topography. In the CDA discussion of Bay Swamp, noted above, the author admits that reclamation historically has not attempted to reclaim the kind of interface necessary between shallow wetlands and the water table to support bay swamps. The parties' understandable, but unrealistic, pursuit of findings that all previous shallow-wetland reclamations of any size have failed or succeeded may have discouraged testimony candidly analyzing what hydrologists have learned from the limited successes and the many failures. Especially unfortunate is the omission of any discussion of the success of Dogleg, where, according to the CDA material, persistent replanting of trees over many years in soils with prominent, but perhaps atypically permeable, cast overburden profiles eventually succeeded, after the completion of nearby mining allowed the water table to reestablish itself. The record does not even indicate if Dogleg mining took place behind a ditch and berm system, nor does it adequately describe the texture of the overburden on which the topsoil rested. In addition to different levels of confidence attaching to the demonstrated ability of the phosphate mining industry to avoid adverse flooding and significant reductions in streamflow, on the one hand, and the routine inability of the phosphate mining industry to re-create the hydroperiods and inundation depths required for shallow wetlands, another point of differentiation exists between Dr. Garlanger's streamflow projections and his hydroperiod and inundation depth projections. Although he uses the same uplands model and similar wetlands models for both tasks, certain characteristics of his relatively simple modeling do not work as well in projecting hydroperiods and inundation depths as they do in projecting streamflows. Accurate projections of streamflow, at a discrete point downstream of the 4197 acres constituting OFG, are amenable to averaging, smoothing out input values, and substituting assumed values for calculated values. Accurate projections of hydroperiods and inundation depths require precise analysis of reclaimed wetlands--few over 10 acres, most less than a couple of acres--distributed over the 3477 acres of OFG to be mined. For each wetland, precision means daily accuracy to within a few inches of elevation of topography and water table and no more than a few feet of hydraulic conductivity. Streamflow projections, which have worked in the recent past, will continue to work, whether each projection within an area is accurate or any errors within an analyzed area offset errors in other areas, so that, notwithstanding flow discharge curves, small discrepancies in projected streamflow average out over longer periods of time. Hydroperiod and inundation depth projections, which may have been attempted, if at all, only rarely in the past, must be accurate over very small areas for very specific time intervals. Also, streamflow projections are less sensitive to misallocations between runoff and groundwater flow than are projections of shallow wetland hydroperiod and inundation depth. The record suggests that reclaiming short wetland hydroperiods and shallow inundation depths places new and more difficult demands upon the phosphate mining industry and its reclamation scientists. Although long accustomed to producing projects that did not flood and at least recently accustomed to producing projects that did not reduce streamflow, the phosphate mining industry and its reclamation scientists are only now acclimating to newer regulatory expectations that they produce projects that reliably reclaim shallow wetlands by re-creating functional relationships between these wetland systems and surface runoff and groundwater flow. Streamflow Streamflow in Horse Creek downstream of OFG and the Peace River is reduced during mining because the ditch and berm system captures all of the runoff, at least up to the capacity of the ditch and berm system. The ditch and berm system is designed to handle the 25-year, 24-hour storm event, although additional, unspecified freeboard is built into the system. The capacity of the ditch and berm system may be exceeded by more intense storms or perhaps even lesser storms, unless the 25-year storm design accounts for antecedent water levels, which may be higher in systems with recharge wells than in systems without the recharge wells. In any event in which the capacity of the ditch and berm system is exceeded, IMC pumps the water through the mine recirculation system and releases it through one of two NPDES outfalls upstream at Horse Creek. Because the ditch and berm system captures all of the runoff, under normal conditions, the reduction in streamflow after reclamation is generally less than the reduction in streamflow during mining. The removal of the ditch and berm system allows runoff again to contribute to streamflow. To analyze the impacts upon streamflow, Dr. Garlanger first performed a simplified water budget analysis at three locations: Horse Creek at State Road 72 (near Arcadia), the Peace River at Ft. Ogden (where the Authority withdraws its raw water--downstream of the confluence of Horse Creek and the Peace River), and the point at which the Peace River empties into Charlotte Harbor. Although Dr. Garlanger used uplands exclusively for this simplified exercise in constructing a conceptual water budget, adding the riparian wetlands would not substantially change the result because the wetlands runoff and evapotranspiration would be higher, but the wetlands groundwater outflow would be lower. Either way, Dr. Garlanger's analysis, which is sometimes called an analytic model, was merely a prelude to more sophisticated modeling. For his during-mining analysis, Dr. Garlanger assumed that the ditch and berm system would capture all the runoff from the 5.4 square miles of the Horse Creek sub-basin behind the ditch and berm system. In sequential mining, the ditch and berm system would not capture all of the 5.4 square miles at once. But, assuming the worst-case scenario, Dr. Garlanger assumed the capture of the runoff from entire sub-basin for a period of 25 years. Initially, Dr. Garlanger also assumed that the ditch and berm system would likewise not release any base flow. This is an unrealistic scenario because, as noted above, one of the two purposes of the ditch and berm system is to permit base flow into wetlands and streams. Later, Dr. Garlanger alternatively assumed that the ditch and berm system would release all of the base flow. If the ditch and berm system is equipped with recharge wells, it is reasonable to expect that the system will release all of the base flow. Calculating that the Horse Creek sub-basin upstream of State Road 64 is 39.5 square miles, Dr. Garlanger divided the average streamflow of 29.1 cfs at State Road 64 by the area of the sub-basin and determined that each square mile contributed 0.74 cfs of streamflow. Multiplying this number by the 5.4 miles captured by the ditch and berm system, Dr. Garlanger determined that, during mining, the ditch and berm system would reduce streamflow by 4 cfs, if it removed all base flow (and runoff). This very worst-case scenario would generate the following reductions in streamflow: in Horse Creek at State Road 72, 2.3 percent; in the Peace River at Ft. Ogden, 0.3 percent; and in the Peace River at Charlotte Harbor, 0.2 percent. Dr. Garlanger then calculated the reduction in streamflow in the probable scenario in which the ditch and berm system, with recharge wells, operates properly and releases the base flow, while still retaining all the runoff. Relying principally upon Mr. Lewelling's report on groundwater outflow in various locations within the Horse Creek sub-basin, Dr. Garlanger calculated that the capture rate would decrease from 0.74 cfs per square mile to 0.28 cfs per square mile. Applying a capture rate of 0.28 cfs per square mile times 5.4 miles, the reduction in streamflow, during mining, is more realistically 1.5 cfs. This means that, under the simplified analytic model, the ditch and berm system would reduce streamflow in Horse Creek at State Road 72 by less than one percent, in the Peace River at Ft. Ogden by .13 percent, and in the Peace River at Charlotte Harbor by .09 percent. These figures would represent the same reduction in streamflow caused by a decrease in average annual rainfall of 0.01 inches. Although, as discussed below, Dr. Garlanger also undertook more sophisticated modeling of streamflow during mining, this is a good point at which to address three of Mr. Davis's objections to Dr. Garlanger's during-mining analysis because these objections are more conceptual in nature and are not directed to Dr. Garlanger's model. Mr. Davis contended that the unmined wetlands would become dehydrated because: 1) the ditch and berm system would deprive them of surface flow or runoff from the areas behind the ditch and berm system; 2) the ditch and berm system would deprive them of adequate base flow or groundwater; and 3) water in the ditch would be lost to evapotranspiration. These objections are more applicable to a ditch and berm system without recharge wells. If the only source of water to rehydrate the wetlands is the groundwater running into the mine and rainfall directly on the area behind the berm, the loss of runoff into the area behind the berm and the loss of water to increased evaporation would require additional analysis to assure that adequate water remained to recharge the downstream wetlands through groundwater inputs. However, the recharge wells add additional water, probably from the deeper aquifers, so that adequate water can be supplied the downstream wetlands through groundwater inputs. To the extent that intercepted surface flow reduces water levels in the unmined wetlands, IMC can offset this loss by pumping more water into the ditch and increasing groundwater inputs into these wetlands. Mr. Davis's additional objection about additional evapotranspiration from the riparian wetlands assumes the condition that he claims will not occur--adequate hydration of the riparian wetlands--so it is impossible to credit this concern. Dr. Garlanger next analyzed streamflow by applying a simulation model. More sophisticated than the analytic model discussed in the preceding paragraphs, the uplands portion of this modeling also aided Dr. Garlanger's analysis of the hydroperiods and inundation depths of the wetlands in the no- mine area and the reclaimed wetlands, which are discussed in the next subsection. Dr. Garlanger's simulation model calculates site-specific groundwater outflows based on day-to-day hydrological conditions. Unlike the analytic model, which examined the effect on streamflow only during mining, the simulation model determines streamflow contributions from OFG without any mining disturbance for a 25-year period into the future, during mining, and after reclamation for the same 25- year period used in the no-mining analysis. The modeling proceeded in two stages. First, Dr. Garlanger modeled uplands. Then, inserting the groundwater and runoff outputs from the uplands model into a streamflow model, Dr. Garlanger modeled the riparian system to determine its contributions to streamflow at a point just downstream of OFG. Thus, rainfall is the only addition of water into the uplands system, but rainfall, groundwater outflow from the uplands into the riparian wetlands, and runoff from the uplands into the riparian wetlands are the additions of water into the riparian system. The uplands model is the Hydrological Evaluation of Landfill Performance (HELP) model. Developed for use in analyzing groundwater movement in landfills, HELP generally calculates groundwater outflow based on the hydraulic conductivity of the surficial aquifer divided by the square of the distance from the riparian wetland to the basin divide. In 2001, Dr. Garlanger modified the HELP model (HELPm). The modification multiplies the output from HELP by the square of the maximum height of the water table above the confining layer at the basin divide minus the square of the minimum height of the water table above the confining layer at the riparian wetlands. The only variable in HELPm is the maximum height of the water table above the confining layer; all other values, including those set forth above for HELP, are fixed. The modification improved the HELP model by allowing Dr. Garlanger, among other things, to reduce the extent to which the model is constrained by enabling him to input more realistic hydraulic conductivities. Using HELP, unmodified, Dr. Garlanger had had to input unrealistically high values for hydraulic conductivity. Hydraulic conductivity is either measured in the field or assumed. To simulate OFG without any mining for 25 years into the future, Dr. Garlanger had to obtain an input for hydraulic conductivity. Based on collected data from near the Panhandle as to daily fluctuations in the water table over a two-year period and sub-surface soil composition, as well as other information, Dr. Garlanger determined an average weighted hydraulic conductivity for OFG, pre-mining, of 19 feet per day with a low of 10 feet per day. Dr. Garlanger settled on an initial average weighted hydraulic conductivity of 15 feet per day for the surficial aquifer, but also identified a low-end average of 10 feet per day. As noted above, the contribution of an area of land to streamflow is dependent upon rainfall, evapotranspiration, deep recharge, and the change in storage, which is driven by the elevation of the water table (i.e., the top of the surficial aquifer) as it changes from day to day. Focusing on the vertical components of the water budget, HELPm calculates daily changes in storage, based on water table levels, so as to permit projections of runoff and groundwater outflow from the uplands. For rainfall, Dr. Garlanger relied upon the records of the Wauchula gauge, which is about 10 miles northeast from OFG. Rainfall data for this gauge go back to 1933, although to supplement some missing months, Dr. Garlanger relied on the Ft. Green gauge, which is closer to OFG, but does not go as far back as the Wauchula gauge. To supplement this information on the volume of rainfall, Dr. Garlanger added inputs on the frequency and rate of rainfall. For this calculation, Dr. Garlanger only used rainfall data for the period from 1978 to 2002 because the U.S. Geologic Service has collected streamflow data for Horse Creek at State Road 64 only as far back as 1978. Similar streamflow data for Horse Creek downstream at State Road 72 and for the Peace River go further back. Dr. Garlanger selected this timeframe so he could compare the model output of predicted streamflow to actual streamflow. HELPm calculates evapotranspiration, typically the largest source of water loss, on a daily basis. Dr. Garlanger calibrated evapotranspiration in his simulation by comparing HELPm calculations against average annual values for evapotranspiration for riparian wetlands, uplands, and wetlands in uplands, so as to permit the calculation of an average value of evapotranspiration for the Horse Creek basin above State Road Calibration is the process by which a hydrologist modifies the data inputs to the model based on measured data in order to produce a better match between observed and predicted data. Using generally accepted evapotranspiration values and the standard water-budget formula, Dr. Garlanger calculated average annual evapotranspiration for the Horse Creek basin above State Road 64 of 40.3 inches. He determined the following annual average evapotranspiration rates: riparian wetlands-- 47.5 inches; depressional wetlands--44 inches; seepage wetlands- -47.5 inches; well-drained uplands--34.5 inches; and other uplands--39 inches. Using this information, Dr. Garlanger then found the appropriate average annual evapotranspiration for the OFG uplands that he was modeling, and he reran the model five or six times until it produced outputs for uplands evapotranspiration consistent with this value. For uplands runoff, Dr. Garlanger turned to a well- recognized methodology for estimating the storage available in the uppermost foot of soil, as infiltration is an important factor in determining runoff. For groundwater outflow, Dr. Garlanger uses the one available equation, which is derived from Darcy's Law. Dr. Garlanger then ran his model for the no-mining, during-mining, and after-reclamation options, and he validated the model. In validation, the hydrologist confirms the model's outputs to measured data. In these exercises, Dr. Garlanger compared the predicted groundwater outflows with the empirical values published by Mr. Lewelling and predicted groundwater levels with those measured by IMC near the Panhandle. Dr. Garlanger ran the model with hydraulic conductivities of 10-15 feet per day and drainage times of 5-12 days. He eventually settled on an average hydraulic conductivity of 10 feet per day and an average drainage time of 12 days. Using these values, Dr. Garlanger validated his output by projecting streamflow from the entire 39.5-square mile area upstream of State Road 64, for which data exist. He found that the model produced a reasonable prediction of the flow duration curve. Dr. Garlanger then validated the output by comparing predicted and measured cumulative streamflow from 1978 through 1987, during which time mining in the Horse Creek basin was insignificant. He found a very good matchup between actual data and his model's predictions. Validating the output for average daily and average annual streamflow against actual data, Dr. Garlanger again found that the model performed acceptably. Dr. Garlanger then was prepared to model the 5.4 square-mile area for impact on Horse Creek streamflow at State Road 64 for 25 years without mining, during mining, and for 25 years after reclamation. For during-mining conditions, Dr. Garlanger assumed that the ditch and berm system would capture all of the runoff and none of the groundwater. For post-reclamation conditions, Dr. Garlanger assumed that the cast overburden spoil piles would be parallel to the flow of groundwater or, where that is not practicable, that the top of the spoil piles would be shaved by progressive amounts, ranging from five feet at the groundwater (or basin) divide progressively to 15 feet at the riparian wetland. This is vital to his calculations because of the vast difference in hydraulic conductivity of cast overburden spoil piles as compared to sand tailings. When oriented perpendicular to groundwater flow and unshaved, these spoil piles would act as underground dams, blocking the flow of groundwater. Dr. Garlanger modeled streamflow, in Horse Creek at State Road 64, which is just downstream of the confluence of Horse Creek and West Fork Horse Creek, under two scenarios: hydraulic conductivity of ten feet per day and drainage time of 12 days and hydraulic conductivity of fifteen feet per day and drainage time of five days. For post-reclamation hydraulic conductivity, Dr. Garlanger used 12 feet per day. With the higher streamflow reductions resulting from the lower hydraulic conductivities, Dr. Garlanger projected streamflow reductions, during mining, from 1.07-2.41 cfs and, after reclamation, from 0.10-0.14 cfs. These are average annual values. Generating a flow duration curve for Horse Creek at State Road 64 and using the more adverse data from the lower hydraulic conductivity value, Dr. Garlanger found a slight decrease, during mining, in flow during low-flow conditions, reflecting the mining of the Panhandle tributaries that contributed to groundwater outflow. Generating a stage duration curve, to depict the elevation of the water in the stream during the low-flow condition, Dr. Garlanger demonstrated that the difference is about three inches. After reclamation, as compared to pre-mining conditions, Dr. Garlanger determined that the average flow is decreased by 0.1 cfs, probably due to increased evapotranspiration from the additional reclaimed wetlands. This generates no discernible difference in the two flow duration curves for Horse Creek at State Road 64. Dr. Garlanger thus reasonably concluded that mining would not adversely affect the flow of Horse Creek at State Road 64 or dehydrate wetlands in the no-mine area. He concluded that, after reclamation, the impact would be de minimis as a decrease of 0.1 cfs is beyond the ability to measure flows. Farther downstream, at State Road 72, which is downstream of the confluence of Brushy Creek and Horse Creek, Dr. Garlanger calculated projected streamflow reductions, during mining, from 1.2-2.8 cfs and, after reclamation, from 0.12-0.16 cfs, which are too small to measure. Likewise, there are no discernible differences in the flow duration curves at State Road 72. Downstream of the confluence of Horse Creek and the Peace River, at Ft. Ogden, Dr. Garlanger calculated that the reduction in streamflow caused by mining at OFG would be equivalent to the reduction caused by a decrease of 0.01 inches of rainfall in the Peace River basin. Mr. Davis voiced many objections to Dr. Garlanger's streamflow calculations based on his reliance on HELPm. These objections are addressed at the end of the next section. Mr. Davis also voiced objections to Dr. Garlanger's calculations based on his understatement of the impact of phosphate mining on streamflow. As already noted, Dr. Garlanger made the better case on this issue. Distinguishing between the two rainfall eras in the Peace River basin--1933-1962 and 1969-1998--Dr. Garlanger reported that the measured average streamflow of the Peace River in the latter era was about 4.33 inches lower than the average streamflow of the Peace River in the former era. Finding that decreased average rainfall reduced streamflow by 3.75 inches per year, Dr. Garlanger calculates that the remaining 0.58 inches per year reduction in streamflow was largely due to an increase in deep recharge from 3.37 inches annually in the earlier era to 6.3 inches annually in the latter era. Anthropogenic changes in the Peace River basin have had opposing effects on streamflow. Urbanization, which causes increases in impervious surface, have increased runoff at the expense of evapotranspiration, thus increasing streamflow-- although certain demands of urbanization, such as groundwater pumping for potable water and industrial uses, will increase deep recharge, thus decreasing streamflow. Groundwater withdrawals by agriculture, industrial, utilities, and phosphate mining, net of the returns of these waters, have increased deep recharge, which, as just noted, decreases streamflow. Historically, phosphate mining's profligate use of deep groundwater also released much of the water back to streamflow, although the industry's historic predilection for Land-and-Lakes reclamation increased evapotranspiration and thus reduced streamflow. Converting inches of streamflow to cfs, Dr. Garlanger makes a good case that the streamflow of the Peace River is down about 500 cfs, mostly due to reduced rainfall amounts. About 50 cfs of that reduction is due to anthropogenic effects, and 5-15 cfs of man-caused reductions in the streamflow of the Peace River are due to phosphate mining. By contrast, Mr. Davis unconvincingly attributed a three-inch reduction in streamflow at the South Prong Alafia River to phosphate mining. This reduction in streamflow may be explained by Mr. Davis's failure to apply a lower and more reasonable streamflow assumption, absent mining; a lower and more likely rainfall amount; and a higher and more likely evapotranspiration rate. Wetland Hydroperiods and Inundation Depths 694. In making his groundwater calculations, Dr. Garlanger attempted to predict the behavior of the surficial aquifer, post-reclamation, and the ability of runoff and the water table to support the hydroperiods and inundation depths of the wetlands in the no-mine area and reclaimed wetlands. For this phase of his hydrological work, Dr. Garlanger again used the HELPm for the uplands and a long-term simulation model for the depressional wetlands in the uplands. The long-term simulation model is very similar to the streamflow model used for the riparian-wetland component of the streamflow modeling. Notwithstanding the replacement of the present geology with its more limited vertical permeability with wide bands of sand tailings down to the clay confining layer, Dr. Garlanger believes that deep recharge will remain unchanged by mining and reclamation because groundwater levels will return to their pre-mining elevations. To analyze the ability of the post-reclamation water table to support the reclaimed wetlands, Dr. Garlanger took 12 wetland cross-sections and projected fluctuations in water table and hydroperiod. These are presumably the 13 wetland complexes identified in Figure 13-3, described above. Dr. Garlanger testified about one modeled reclaimed wetland in detail--a freshwater marsh fringed by a wet prairie. This is E046/E047, which is a combined 16.1-acre wetland that is upgradient from E048, which is six-acre mixed wetland hardwoods that will replace the east half of a bay swamp (G166) and mixed wetland hardwoods fringes (G166B and G166C). Dr. Garlanger performs an iterative process based on a post-reclamation topographic map that starts with substantially pre-mining topography. Identifying the HELPm inputs, Dr. Garlanger takes the length of the upland to the riparian system and the assumed hydraulic conductivity based on the relative depths of sand tailings and cast overburden, and he then runs HELPm to determine the daily upland runoff and groundwater outflow. Dr. Garlanger then calculates the maximum height of the water table above the confining layer at any point downgradient from the basin divide to the riparian wetland. To input hydraulic conductivity, Dr. Garlanger testified that he obtains a value "based on the spoil piles and the depth that the spoil pile will be cut down to adjacent to the preserved area." (Tr, p. 2993) Applying the output to a wetlands model that is similar to the streamflow model, Dr. Garlanger then engages in an iterative process in which he adjusts and readjusts the post- reclamation topography to produce the proper elevation of the bottom of each modeled wetland for the hydroperiod that is stipulated for the vegetative community to be created in that location. Besides changing the bottom slope of each seepage wetland, the major adjustments for each wetland are narrowing its outlet or lowering its bottom elevation to extend its hydroperiod and deepen its inundation depth or broadening its outlet or raising its bottom elevation to shorten its hydroperiod and make its bottom elevation more shallow. Dr. Garlanger modeled the iterative process by continuing it late into the hearing, as he and IMC surveyor, Ted Smith, produced a "final" post-reclamation topographic map at the end of the hearing. Actually, even this map is not final, as Dr. Garlanger testified that he and Mr. Smith will produce the final topographic map, for wetlands, after the area is mined, photographed, backfilled, and graded, at which time they will know the location and direction of the cast overburden spoil piles. Dr. Garlanger will then use a calibrated model to account for actual in situ conditions. Due to the flatness of OFG, it is possible, even at this late stage, to regrade the sand tailings, if necessary for hydrological purposes. Monitoring wells will produce substantial data on the hydraulic conductivity of the no-mine area, as well as the hydroperiods of existing wetlands and the frequency with which seepage wetlands release water. Dr. Garlanger and IMC employees will also measure the hydraulic conductivity of the sand tailings and overburden in the reclaimed areas, also to assist their preparation of the final topographic map. As noted above, ERP Specific Condition 16.B.2 requires IMC to model 24 reclaimed wetlands to demonstrate successful water table re-creation and hydroperiod and inundation depth reclamation. Dr. Garlanger applied his models to confirm that, for each of the 24 modeled wetlands, the design topography and hydrology would produce the targeted hydroperiod and inundation depth. Mr. Davis modeled three reclaimed bay swamps. Bay swamps are the hardest wetlands for which to reclaim an appropriate water table due to their long hydroperiod, shallow inundation depths, and seepage characteristics. As noted above, no successful reclamation of bay swamps has ever taken place, except under circumstances inapplicable to OFG. The three reclaimed bay swamps are: E008, a 0.7-acre bay swamp abutting the west side of the Stream 1e series; E063, a 1.3-acre flow-through bay swamp in Stream 5e; and W039, an 11.2-acre bayhead from which Stream 1w will flow. W039 is a very large reclaimed wetland. After the 20.7-acre wet prairie (W003) to be reclaimed at the headwaters of Stream 9w and the 23.8-acre mixed wetland hardwoods (E003) lining the Stream 1e series, W039 is the largest reclaimed wetland at OFG, along with E018/E020, which are the isolated wet prairie fringe and freshwater marsh on the east side of Section 4. Mr. Davis testified as a witness in surrebuttal, which was necessitated by a late change by IMC in post- reclamation topography for these three bay swamps. Mr. Davis implied that he understood these three bay swamps better than he did the other reclaimed wetland systems. The fact is that he did understand these three reclaimed bay swamps better than he did any other reclaimed wetlands. Prior to testifying, at the order of the Administrative Law Judge, Mr. Davis and Dr. Garlanger conferred so that Mr. Davis, in preparing to respond to the "final" post-reclamation topography, would clarify any uncertainty about how Dr. Garlanger was modeling these wetlands and projecting their hydroperiods and inundation depths. Mr. Davis identified Dr. Garlanger's topographical changes to these three bay swamps. For E008, Dr. Garlanger lowered the west end of the wetland by 0.5 feet, extended a 114-foot contour up the channel, just east of an existing 115- foot contour, and possibly adjusted the slope. For E063, Dr. Garlanger lowered the bottom elevation by one foot, so that it can now store 0.3 feet of water, given its overflow popoff elevation. And for W039, Dr. Garlanger removed a slope and flattened the bottom, so that it can store 0.3 feet of water. From Dr. Garlanger's spreadsheets, Mr. Davis found the values for runoff, groundwater, and rainfall entering each wetland. Mr. Davis found that E008 received only 10 percent of its water from runoff, more of its water from rainfall, but most of its water from groundwater inflow. Noting that E008 abuts a reclaimed xeric area, Mr. Davis recalled a 6:1 ratio of groundwater inflow to runoff inflow. Mr. Davis explained that E008 loses most of its water to runoff. Mr. Davis found that the groundwater input for this wetland was consistent with the testimony of biologists, such as Deputy Director Cantrell, that bay swamps are primarily groundwater-driven systems, but questioned the absence of groundwater outflow to the adjacent, down-gradient riparian wetland (E003). For E063, however, Mr. Davis found that inputs from runoff, a more important source of water for this wetland, were about the same as inputs from groundwater. Although he did not testify to this fact, E063 is an unusual reclaimed bay swamp because it is the only one that will serve as a flow-through wetland, situated, as it is, in the middle of Stream 5e. This would seem to explain the larger role of surface water inputs than is typical of bay swamps adjacent to uplands. For W039, Mr. Davis found a small percentage of surface water and larger percentages of groundwater and rainfall as water sources for this wetland. Rainfall inputs would be greater due to the large area of the wetland, according to Mr. Davis. As a headwater wetland abutting uplands, W039 would be expected to have a higher input ratio, than E063, of water from groundwater versus runoff. Mr. Davis noted that W039 lost about half of its water to evapotranspiration, which would also make sense given its large surface area, and half to runoff, which would make sense given its status as a headwater wetland for Stream 1w. Mr. Davis then ran his MIKE SHE model to predict the hydroperiod for each wetland. This model is described in more detail at the end of this subsection. In simulating the hydrology of the reclaimed OFG, Mr. Davis assumed that the overburden spoil piles would be parallel to the direction of groundwater flow and eliminated any differential depressional storage, but he continued to assume two inches of depressional storage. (These assumptions are also discussed in connection with the MIKE SHE model.) Mr. Davis found that the 11.2-acre W039 will have a perfect hydroperiod. Its inundation hydroperiod will range from 8.6 months to 11.0 months, from bottom to top. Its saturation hydroperiod, which is water measured to a depth of 0.5 foot below the bottom of the wetland, will range from 8.8 months to 11.1 months, from bottom to top. Mr. Davis found that the 1.3-acre E063 will have a hydroperiod of 11.9 months, which is 0.9 months too long. Mr. Davis found that the 0.7-acre E008 will have a hydroperiod of 2.7 months for inundation and 4.6 months for saturation, which is about four months too short. 714. Crediting Mr. Davis's testimony, IMC's successful reclamation of an 11.2-acre bay swamp, dependent upon upland surface water and groundwater inputs, would be an unprecedented success. As discussed below, Mr. Davis's depressional assumption is not credited, so the hydroperiod of E063 would be shorter than the 11.9 months that he has calculated. Also, this reclaimed system will be a seepage system that would not permit the build-up of much standing water, so, even crediting Mr. Davis's calculations, Dr. Garlanger has achieved the proper hydrology for its reclamation too. It is more difficult to resolve the conflict in simulated hydroperiods for E008. E008 is a more complicated wetland to model because it is part of a reclaimed complex consisting of nine reclaimed wetlands. No other wetland complex to be reclaimed at OFG approaches this number of different communities in a single complex. Except for E018, which, although 30.7 acres, is a much simpler wetland system because it is an isolated complex of three wetlands, no other wetland complex to be reclaimed at OFG comes close to the area of the Stream 1e series' wetlands complex, which totals 35.1 acres, or over 10 percent of the wetlands to be reclaimed at OFG. Mr. Davis's unjustified depressional assumption generates excessively wet conditions, but, for E008, he found its hydroperiod to be too short by at least 3.4 months. And, of course, E008 is the difficult-to-reclaim bay swamp. The two models invite comparisons at this point. Mr. Davis's model, MIKE SHE, enjoys wide usage for calculating streamflows, hydroperiods, and inundation depths, as it has been used in these cases. MIKE SHE has been used successfully in large-scale settings. On the other hand, HELP was designed for calculating water levels in landfills. For calculating the uplands component of streamflow and hydroperiod, HELPm is used by Dr. Garlanger alone. The author of HELP's routine for lateral drainage and the subroutine for unsaturated vertical flow, Bruce McEnroe, pointed out that this model could accommodate only a regular, homogenous drainage layer, as would be found in a landfill, and could not accommodate the irregular, heterogeneous aquifer layer, which Dr. Garlanger was modeling. Mr. McEnroe also explained that the downstream boundary condition of HELP, which is free drainage, does not resemble the actual downstream boundary condition, in which groundwater cannot typically drain freely, and this limitation applies equally to the pre-mining and post-reclamation scenarios. Mr. McEnroe also found a mathematical error, but Dr. Garlanger later showed that it would alter results inconsequentially. Complaining about Dr. Garlanger's failure to provide comment lines in his source code, where he modified HELP, Mr. McEnroe emphasized that the model, as modified and used by Dr. Garlanger, really was no longer the HELP model. Counterposed to Mr. McEnroe's testimony was the testimony of Mark Ross, an associate professor of civil and environmental engineering at the University of South Florida College of Engineering. Professor Ross has 20 years' experience in hydrological modeling and has worked with the Florida Institute of Phosphate Research model that Mr. Davis helped develop, but which no longer is supported or in much use. Professor Ross conducted a peer review of the HELPm model, spending 20-30 hours in the process, exclusive of time spent discussing the model with Dr. Garlanger. Professor Ross endorsed Dr. Garlanger's use of a single value of .75 for evapotranspiration in riparian wetlands and his use of a weighted hydraulic conductivity. Professor Ross acknowledged that more complex models were available, but correctly opined that the simplest model was best if it could accommodate all of the available data. Although the emphasis in his testimony was on streamflow, Professor Ross addressed wetlands and their hydroperiods sufficiently to assure that his opinion of the sufficiency of the HELPm model covered both tasks. The interplay between the complexity of the model and availability of data emerged more clearly with the testimony of Authority hydrologist Henrik Sorensen, who developed code for the MIKE SHE model. Successful applications of this model range from the Danube River to Kuala Lampur to South Florida. The Danube River project was the construction of a dam, and hydrologists ran MIKE SHE to project the impact of the diverted streamflow on riparian wetlands. The Kuala Lampur project was the construction of a new city, and hydrologists ran MIKE SHE to project the impact of vastly changing land uses on the water level in the peat wetlands. South Florida projects have included a number of analyses of wetlands impacts of proposed activities. At Lake Tohopekaliga, hydrologists used MIKE SHE to project the effects on the water table and nearby wetlands of a 6-7 foot drawdown of the lake to remove muck. Unlike HELPm, MIKE SHE is an integrated model, meaning that all of its components are contained in a single model. Significant for present purposes, MIKE SHE integrates surface water and groundwater analysis in a single model, so as to facilitate the modeling of the interaction between a stream and surficial aquifer. This is especially important for simulating interactions between the surface and shallow water tables. MIKE SHE is a physically based model, meaning that it is based on equations derived from the laws of nature. In using HELPm and the spreadsheet models for streamflow and hydroperiod, Dr. Garlanger of course relies on laws of nature, but also relies on conceptualizations to link equation-driven outputs. As Mr. Sorensen explained, MIKE SHE is based on differential equations, so that it is dynamic as to time and space, but Dr. Garlanger's models are based on analytic equations, so they are limited to state-to-state solutions. The conceptualizations that link outputs and essentially integrate Dr. Garlanger's pairs of models are only as good as the conceptualizer, who, in the case of Dr. Garlanger, is very good, but conceptualizations can become so pervasive that the model loses its reliability and adds little or nothing to a conceptual exercise using an analytic model. Unlike MIKE SHE, HELPm is a lump-parameter model, which necessitates the input of average hydraulic conductivities, evapotranspiration rates, and leaf area indexes over relatively large areas and, in the case of evapotranspiration rates, sometimes at the expense of their calculation. Constraining a model, by inputting, rather than calculating, values to force results within an expected range, may resemble validation, but when the inputs become unrealistic, as Dr. Garlanger's hydraulic conductivity values were before he modified HELP, the model's credibility is impaired, not enhanced, by the process. Conceptualizations can eventually constrain modeled simulations so as to undermine confidence in the model's outputs. Unlike HELPm, MIKE SHE is spatially distributed, so that different land use types may be distributed throughout the model. HELPm may input different land uses for different basins, but MIKE SHE allows the user to input different land uses for different cells, each of the user's choice as to size. As noted by Mr. McEnroe, HELP was developed to simulate a shallow system running to a drain, and it remains well-suited for this task. In tracking the water table, HELPm assumes a constant thickness of the drainage layer, which reflects the design of landfills, not natural systems. As IMC contends, the post-reclamation geology will be far simpler than the pre-mining geology at OFG, but even the post-reclamation hydrology is far more complex than that of a landfill. With a 35:1 ratio of hydraulic conductivities, the surficial aquifer must negotiate the 330-foot wide valleys of sand tailings separated from 180-foot wide plateaus by 33-degree overburden slopes. Overburden peaks would have been simpler than overburden plateaus because the effective depth of sand tailings would have been at least five feet over nearly all of the mined area; as already noted, these overburden plateaus mean that, exclusive of shavings and toppings, overburden at less than five feet finished depth occupies about 28 percent of the surface of the mined area. This geology is much more complicated than the uniform geology of a landfill, especially when trying to project the surface water and groundwater inputs and outputs of shallow wetlands and streams, some of which will span several phases of this unusual geology. Unlike HELPm, MIKE SHE is used for its designed purpose when used for projecting streamflow and wetlands hydroperiods and inundation depths. It is widely used, peer- reviewed and supported with two or three updates annually. Mr. Sorensen made an interesting point when he opined that HELPm does a good job with average flows. This explains HELPm's reliability in calculating streamflows. Notwithstanding the calculation of peak discharge curves, accurate streamflow calculations--at least in this part of Florida--tolerate calculations based on average conditions and approximations much better than do accurate calculations of hydroperiod and inundation depths, especially concerning shallow wetlands in wetland complexes. MIKE SHE is not without its shortcomings, at least as applied in these cases. For his MIKE SHE simulation, Mr. Davis did not simulate first- and second-order streams, perched groundwater flow (i.e., interflow), or shallow concentrated overland flow, and, despite the model's sophistication, he still had to perform conceptualizations, such as of drainage. Mr. Davis's first two post-reclamation runs, prior to his final run of the three bay swamps, suffered from faulty assumptions. First, he assumed depressions and differential depressions based on a settling that Dr. Garlanger, with geotechnical engineering experience that Mr. Davis lacks, testified convincingly would not occur. Second, Mr. Davis assumed that the spoil piles would be oriented perpendicular to the direction of groundwater flow. Mr. Davis likely knew that IMC had agreed on December 23, 2003, to orient the mine cuts parallel to the direction of groundwater flow, to the extent practicable. Mr. Davis modeled the perpendicular scenario presumably due to the vagueness of the assurance, set forth only in the introduction to the January submittal, and thus unenforceable, that IMC would grade or shave the tops of overburden plateaus of spoil piles running perpendicular to groundflow. When performing his modeling, Mr. Davis could not have known of Dr. Garlanger's recommendation, as contained in a letter dated April 29, 2004--less than two weeks prior to the start of the final hearing--that IMC shave 5-15 feet off any perpendicular cast overburden spoil piles or that IMC would accept Dr. Garlanger's recommendation during the final hearing. As agreed to by IMC during the hearing, it will bulldoze any spoil piles oriented perpendicular to the direction of groundwater flow from 5-15 feet: the cut would allow five feet of sand tailings nearest the groundwater divide and would progressively deepen to allow 15 feet of sand tailings nearest the stream. For an average width of overburden of 195 feet with five feet thickness of sand tailings, which is the width calculated above under the less-favorable hydrological scenario with regard to the bases of the sand tailings valleys and cast overburden plateaus, Dr. Garlanger calculated a hydraulic conductivity of seven feet per day. Mr. Davis assumed that IMC would not be able to orient the spoil piles parallel to groundwater flow, but nothing indicates that the proper orientation of these piles will be impracticable over significant areas of land. If a turn of the dragline near Horse Creek leaves a relatively short area of spoil perpendicular to groundwater flow and if IMC will shave this area as it does rows, shaving the pile down 15 feet would substantially improve water table/shallow wetland interaction over the portion of the mined area that is left with an overburden plateau. Conceptualizing the contingency of a spoil pile blocking groundwater flow close to Horse Creek, such as from the U-turn of the dragline at the end of a row, the bulldozing of that spoil pile down to an effective 15-foot depth would leave a depth of at least 15 feet of sand tailings running 1095 feet, as measured alongside of Horse Creek out to a point at which the spoil piles would again run parallel to groundwater flow. If all of the spoil piles turned at Horse Creek and assuming that IMC will cut down the cast overburden piled against the sides of the mine cuts, for the distance equal to the distance between the edge of the no-mine area to the start of the curve, sand tailings would be at least 15 feet deep. The real problem with MIKE SHE, as applied at OFG, is its sophistication. Mr. Sorensen admitted that he had not reviewed the data available for this part of Florida, but claimed that he knew, based on his work in South Florida, that sufficient data existed to run the MIKE SHE model. This is highly unlikely. In addition to Mr. Davis's observation about the lack of data, the record reveals a slimmer universe of data than Mr. Sorensen imagined to exist. Measured values for the hydraulic conductivity of pre-mined or post-reclaimed areas are largely unavailable. For specific reclamation sites, little data exist of pre-mining and post-reclamation soil textures, water tables, and wetland hydroperiods and stage elevations. By volume, the two most critical inputs are rainfall and evapotranspiration, which must be calculated or assumed because, for practical purposes, it cannot be directly measured. A major determinant of evapotranspiration is the water table elevation. The critical inputs of rainfall and water table elevations illustrate the shortcomings of the data for these cases. Rainfall records in the general area cover a long period of time, except that collection points are usually far enough away from the site to be analyzed as to raise the probability of significant daily fluctuations, which average out over time. MIKE SHE inputs rainfall spatially and hourly while HELPm inputs a single daily value. Without regard to any particular application, MIKE SHE is the superior model on this point, but its superiority is wasted when the data of hourly rainfall for individual cells are unavailable and values, often based on much longer intervals at much greater distances, must be interpolated. Records for most surficial aquifer monitoring wells in the area date back only to the early 1990s and are fairly spotty as to locations. MIKE SHE inputs spatially distributed groundwater elevations, while HELPm inputs a single value. If, as Mr. Davis testified, multiple inputs of water table elevations, for which direct OFG data are unavailable, must rely on a hydrologist's knowledge of surficial aquifer responses, MIKE SHE would share the same tendency of HELPm--at least for this variable--of relying on external guidance to produce its output. By contrast, the scientists studying the Danube River had lacked the resources for many years to do much more than collect data, so the data for the Danube MIKE SHE simulation was much richer than the data available at OFG. In such data-rich environments, MIKE SHE is the superior model for wetland hydroperiods and inundation depths. The question in these cases is whether, given the limitations of the OFG data and HELPm in simulating hydroperiods and inundation depths, IMC has still provided reasonable assurance of the reclamation of functional hydroperiods and inundation depths for reclaimed wetlands. IMC's case as to reclaimed hydroperiods and inundation depths is undermined by certain aspects of the use of HELPm in these cases. The scientific method, which lends confidence to analysis-driven conclusions to the extent that others can reproduce the analytic process, is poorly served by computer code that is modified without notation and modeling results that no one can reproduce due to the repeated intervention of the modeler, applying his touch and feel to the simulation. Only at the end of nearly eight weeks of hearing and a conference between Dr. Garlanger and Mr. Davis could Mr. Davis finally gain sufficient understanding of Dr. Garlanger's modeling process to make a meaningful comparison between his conclusions and Dr. Garlanger's conclusions for the hydroperiods and inundation depths of three wetlands. When applied to project streamflow, with its relative amenability to average inputs, and when applied to projecting the hydroperiods and inundation depths of deeper and more isolated wetlands, HELPm, as used by Dr. Garlanger, who, as an experienced and highly competent hydrologist, can adjust and re- adjust inputs and outputs, produces reasonable assurance. However, Mr. Davis's analysis of Dr. Garlanger's work and other factors preclude a finding that Dr. Garlanger has provided reasonable assurance that IMC will reclaim a functional hydroperiod and inundation depths for E008. The finding in the preceding paragraph implies no similar rejection of Dr. Garlanger's modeling of the other wetlands. Most of the modeled reclaimed wetlands are isolated and do not present the challenge of simulating complex interactions among them, where an error in modeling an upgradient wetland will cause an error in modeling a downgradient wetland. A couple of the modeled reclaimed wetlands are headwater wetlands, which Dr. Garlanger has demonstrated his ability to model in W039. Outside of the Stream 1e series, the only wetlands similar in location to E008, as attached to a riparian system, will be E040, E048, E054 complex, and W044, of which only E048 is to be modeled. Mr. Davis also addressed E048 in surrebuttal. A wetland forested mixed, E048 will replace a high-functioning bay swamp abutting, or a part of, the riparian wetlands of Horse Creek. Mr. Davis admitted that he could agree with Dr. Garlanger's analysis of inputs into E048 from isolated reclaimed wetlands upgradient of E048, so that he could agree with Dr. Garlanger's projected hydroperiod for this reclaimed wetland. However, Mr. Davis explained that E008 is located in the flatter Panhandle, but that E048, as well as the other reclaimed wetlands listed in the preceding paragraph, are located in areas characterized by steeper grades and more xeric conditions, which support Dr. Garlanger's emphasis on groundwater inputs over surface water inputs. Peak Discharges During mining, the ditch and berm system prevents adverse flooding. If it operates as intended, the ditch and berm system delays the release of runoff from OFG by re-routing it through one of the NPDES outfalls. This decreases peak discharge downstream of OFG. Presumably, IMC will operate the recharge wells in anticipation of storm events--allowing the water levels to lower in advance of storms and maintaining higher water levels in advance of drier periods--so as not to raise the possibility of flooding by way of accelerated discharges through the NPDES outfalls. Failure of the ditch and berm system is highly improbable. The sole failure reported in this record did not involve a system as engineered as the one proposed for OFG, according to Dr. Garlanger. Another possible source of flooding during mining arises from the designed blockage of flow from unmined areas. IMC plans a single, elevated pipeline crossing across Stream 2e, and Dr. Garlanger explained that the design of the culvert, as part of this temporary crossing, will not result in adverse flooding during mining. Similar design work by Dr. Garlanger will be necessitated, if DEP issues a Final Order incorporating the recommendation below that the Stream 1e series and its 25-year floodplain also be placed in the no-mine area. The riparian wetlands for the Stream 1e series are narrowest along Stream 1ee, so this may be the location that DEP determines for the dragline walkpath corridor, if DEP determines that IMC may maintain a dragline crossing anywhere along the Stream 1e series. The sole issue, during mining, involving peak discharges is a legal question, which is whether IMC's ditch and berm system has the capacity to accommodate the design storm. As noted below, the design storm is the 25-year storm, if the ditch and berm system is an open drainage system, and the design storm is the 100-year storm, if the ditch and berm system is a closed drainage system. The capacity of the proposed ditch and berm system is designed to accommodate the 25-year storm, but not the 100-year storm. The facts necessary to determine if the ditch and berm system is open or closed are set forth above. In its Final Order, DEP must characterize a system that is closed in the sense of the availability of a passive discharge outfall, but open in the sense that, with the intervention of pumps--assuming the availability of electricity during a major storm or alternative sources of power--excessive volumes of water may be moved to an NPDES outfall. This is a minor issue because, even if DEP determines that the ditch and berm is a closed system, IMC may easily heighten the berm as necessary to accommodate the 100-year storm. Post-reclamation, many of the changes that IMC will make to OFG will reduce peak discharges. The agricultural alterations that ditched and drained wetlands accelerated drainage and increased peak discharges downstream, as compared to pre-existing natural drainage rates and peak discharge volumes. The removal of these ditches, the net addition of 24 acres of forested wetlands and 48 acres of herbaceous wetlands, the addition of sinuosity and in-stream structure to the reclaimed streams, and the redesigning of the banks of the reclaimed streams so as to permit communication between the reclaimed streams and their floodplains will attenuate floodwaters, slow the rate of runoff, increase temporary storage, and ultimately reduce peak discharges from their present values. Dr. Garlanger modeled peak discharges using the Channel Hydrologic Analysis Networking (CHAN) model, which is a widely accepted model to simulate peak discharges. As already noted, Mr. Loper found several inconsistencies and flaws in earlier modeling, but Dr. Garlanger, undeterred, re-ran the CHAN simulations, incorporating Mr. Loper's findings, as Dr. Garlanger deemed necessary. The bottom line is that, post-reclamation, very small increases in peak discharges will occur at the Carlton cutout and would occur at some property immediately downstream of the point at which Horse Creek leaves OFG. The owners of the Carlton cutout consented to the very minor flooding of their pasture land, and IMC, of course, has no objection to the very minor flooding of its downstream property. Even absent these consents, the very limited extent and frequency of flooding, given the prevailing agricultural uses in the area, could not be characterized as adverse. Among the points raised by Mr. Loper was the absence of mapping of any floodplain besides the 100-year floodplain of Horse Creek. The omission of other floodplains is of environmental or biological importance, but not direct hydrological importance. If for no other reason than that IMC will replicate pre-mining topography, especially at the lower elevations, there will be no loss of floodplain storage. 4. Water Quality Water quality violations characterize past efforts to reclaim streams, other than Dogleg Branch, but the good water quality at Dogleg Branch means that the phosphate mining industry can reclaim streams and maintain water quality, post- reclamation. The intensive engineering in IMC's Stream Restoration Plan raises the prospect of successfully reclaimed water quality, especially among the simpler, more altered stream systems to be reclaimed. There is little doubt that, during mining, few impacts to water quality take place. The ditch and berm systems in place during the upstream mining in the Horse Creek sub-basin have permitted no degradation of water quality. Given the present condition of most of the tributaries and extensive agricultural alterations of most of OFG, successful reclamation may be expected to result in certain changes to water quality, among already-altered tributaries, at least once the reclaimed communities have established themselves. Successful reclamation of these streams and their channels should lower turbidity, by replacing their incised, unstable stream channels and banks with stable channels and banks. The addition of riffles and structure to the stream bed should raise dissolved oxygen levels in these streams. Excluding cattle from these streams, by placing cattle ponds away from Horse Creek and vegetatively screening Horse Creek and the tributaries, should lower adverse impacts, such as turbidity, due to cattle damage to the banks, and nutrient loading, due to cattle waste discharges. Phosphorus is sometimes temporarily higher after mining, but this may be merely a trophic surge. Water temperature will cool with the addition of forested riparian wetlands, once the canopy develops, where none presently exists. However, none of these effects can be anticipated with the reclamation of the relatively pristine Stream 1e series. Other reclamation activities may also be anticipated to improve water quality. These activities include adding net wetlands area, replacing low-functioning wetlands with wetlands with the potential to achieve high-functioning levels, concentrating wetlands more around streams, adding supportive uplands, and otherwise increasing storage and slowing runoff. These activities will raise the level of natural filtration, compared to the natural filtration presently performed at OFG. Wildlife Management and Habitat The wildlife management plans are reasonable accommodations of wildlife that presently use OFG, based on the frequency of the usage by each species and the degree of protection afforded certain species. It is important that IMC update wildlife utilization information for the period that elapses between the site visits and the commencement of mining; wildlife usage by some species, especially the Audubon crested caracara, was discovered shortly before the hearing and, if later found to be more intense, will require more intensive wildlife management plans. Likewise, DEP will need confirmation of FWC's approval of IMC's gopher tortoise relocation plan. Always of especial concern is the Florida panther. Obviously, the accommodations necessary for one or two male Florida panthers visiting OFG are far less intensive than those necessary if a breeding pair had established themselves at the site. Ms. Keenan testified that the ERP/CRP approval should have incorporated the entire Habitat Management Plan. Although the ERP and CRP approval would be strengthened by the incorporation of the Habitat Management Plan, and DEP may elect to do so in its Final Order, the provisions actually incorporated adequately address wildlife management concerns. The evidence fails to establish that OFG, which has been logged over the years, presently supports red cockaded woodpeckers. Clearly, as is the case with the Audubon's crested caracara, IMC is committed to develop, prior to mining, appropriate management plans that meet the needs of whatever species are found using OFG between the hearing and the start of mining. In general, the reclamation of OFG will improve the value of the area for wildlife habitat. The concentration of reclaimed wetlands reduces induced edge by 36 miles. Induced edges artificially increase predation and decrease the function of the upland/wetland interface for those aquatic- or wetland- dependent species that rely on adjacent uplands during parts of their life cycle. The increased breadth of the riparian wetlands, which has been detailed above, also improves wildlife utilization and habitat values by discourage cattle from using the streams and adjacent wetlands. IMC's reclamation plan slightly increases the area of cattle ponds and locates them farther away from sensitive wetlands and streams. IMC's reclamation plan also serves the often- overlooked needs of amphibians. The creation of isolated and ephemeral wetlands, which will not receive floodwaters from Horse Creek or its tributaries in most storm events, will enable these amphibians to develop sustainable populations and flourish. At present, two factors have led to artificially high levels of predation of these amphibians by small fish. Ditching of formerly isolated wetlands and the proximity of still- isolated wetlands to tributaries and their connected wetlands-- so as to allow runoff to connect the two systems during storm events--allow small fish to enter the habitat of the amphibians and prey upon them at artificially high rates. Mitigation/Reclamation--Financial Responsibility IMC has never defaulted on any of its reclamation or mitigation responsibilities. Its mitigation cost estimates are ample to cover the listed expenses of the proposed wetlands mitigation, with two exceptions. For reasons set forth in the Conclusions of Law, IMC is not required to post financial security at this time for any CRP reclamation, such as the reclamation of uplands not relied upon by aquatic- and wetlands- dependent species, that is not also ERP mitigation. However, the listed expenses omit two important items of ERP mitigation. First, the listed expenses omit Dr. Garlanger's fees for final engineering work on wetlands hydroperiods and inundation depths after backfilling has been completed. This is an expense covered under reclamation, as well as mitigation, pursuant to Chapter 378, Part III, and Chapter 373, Part IV, Florida Statutes, respectively. Second, the listed expenses omit the cost of acquiring sand tailings, transporting them to the mine cut, and contouring them. For the reasons discussed in the Conclusions of Law, the cost of obtaining and transporting the sand tailings is not required under reclamation, pursuant to Chapter 378, Part III, Florida Statutes, but is required under mitigation under Chapter 373, Part IV, Florida Statutes. Charlotte County contends that the cost of obtaining, transporting, and contouring sand tailings is $35,588 per acre, according to Mr. Irwin. This represents $10,588 per acre, as Mr. Irwin's "best guesstimate" for earthmoving, which seems to include the stripping and preserving of the A and B horizons, and $25,000 per acre for the shaping of wetland reclamation units. This testimony includes items for which financial security is not required, such as preserving the A and B horizons, and excludes the third-party cost of acquiring sufficient sand tailings to backfill the OFG mine cuts to the post-reclamation topography and transporting these sand tailings to OFG. The record supplies no information on these costs.
Recommendation It is RECOMMENDED that the Department of Environmental Protection issue a Final Order: Granting the ERP with the conditions set forth in paragraph 884 above. Approving the CRP with the conditions set forth in paragraph 919 above. Approving the WRP modification when the ERP and CRP approval become final and the time for appeal has passed or, if an appeal is taken, all appellate review has been completed. Dismissing the petition for hearing of Petitioner Peace River/Manasota Regional Water Supply Authority for lack of standing. DONE AND ENTERED this 9th day of May, 2005, 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 9th day of May, 2005. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Greg Munson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Douglas P. Manson Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606-2543 John R. Thomas Thomas & Associates, P.A. 233 3rd Street North, Suite 101 St. Petersburg, Florida 33701-3818 Edward P. de la Parte, Jr. de la Parte & Gilbert, P.A. Post Office Box 2350 Tampa, Florida 33601-2350 Renee Francis Lee Charlotte County Attorney's Office 18500 Murdock Circle Port Charlotte, Florida 33948 Alan R. Behrens Desoto Citizezs Against Pollution 8335 State Road 674 Wimauma, Florida 33598 Alan R. Behrens 4070 Southwest Armadillo Trail Arcadia, Florida 34266 Gary K. Oldehoff Sarasota County Attorney's Office 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236 Thomas L. Wright Lee County Attorney's Office 2115 Second Street Post Office Box 398 Ft. Myers, Florida 33902 Rory C. Ryan Holland & Knight, LLP Post Office Box 1526 Orlando, Florida 32802-1526 Frank Matthews Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Susan L. Stephens Holland & Knight, LLP Post Office Box 810 Tallahassee, Florida 32302-0810 Francine M. Ffolkes Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Did the Respondent, Charles W. Coxwell, Sr., excavate in statutorily- protected waters of the State of Florida in March of 1992, as alleged in the Department's Notice of Violation (NOV).
Findings Of Fact 1. In back of Respondent's house, on property owned by the Respondent, is a spring system where underground streams of water flow to the surface and out into an area formerly dominated by wetland plant species, to include: Fetterbush (Lyonia Iucida), Sweet Gallberry (Ilex Corjacea), and Sweet Bay Magnolia (Magnolia Virginiana). The stream continues over property owned by other persons, ultimately flowing into Grassy Lake which connects to Choctawhatchee Bay. All of this water is statutorily protected and within the regulatory jurisdiction created and assigned to the Department by the Legislature. In 1990, Respondent applied for a permit from the Department to construct a small impoundment where the springs flow out, on his property (and before the waters flow onto the property of other downstream landowners). The application form for the permit sought by Respondent in 1990 required him to list the adjoining landowner, who was, in fact, a Mr. Finch. Mr. Finch expressed his concern that an improperly built impoundment might be unsafe. The Department made a number of requests to Respondent for specific design specifications and drawings of the impoundment and its outfall structure. Respondent had discussions with Department staff in which he acknowledged that a permit was required; however, he declined to respond satisfactorily to the Department's "incompleteness requests" for additional information. Ultimately, the permit application was denied on May 16, 1991. Respondent did not pursue administrative remedies in the matter of the permit denial. In approximately March of 1992, Respondent caused 0.3 acres of the statutorily-protected waters and wetlands where the springs emerge behind his house to be excavated without the permit required by Florida law. Respondent knew that permits for such excavation were required by Florida law. The NOV assessed $404.51 (four hundred and four dollars and fifty-one cents) in enforcement costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the findings of the Department's Notice of Violation were proven by substantial and competent evidence, and it is RECOMMENDED that the Orders for Corrective Action set out in the Notice of Violation and restated below be made final: Respondent shall immediately cease and desist from either dredging and/or filling within waters of the State as defined in Florida Administrative Code Rules 17-4.022 and 17-312 prior to receiving the necessary permit form the Department or notice that the proposed activity is exempt from the permitting requirements of the Department. Within 30 days of the effective date of the Final order, Respondent shall reimburse the Department for expenses incurred in investigating the violation in the sum of $404.51. Payment shall be made by certified check, cashiers' check or money order submitted to the Department's Northwest District Office, 160 Governmental Center, Pensacola, Florida 32501-5794. See Exhibit 3 Attached. Within 60 days of the effective date of the Final Order, Respondent shall restore the excavated area as identified on the drawings attached hereto as Exhibit 2. The excavated material shall be regraded so as to re-establish pre-existing contours and elevations as indicated by the adjacent undisturbed areas. Respondent shall revegetate the restored site as identified in paragraph d below. Respondent shall stabilize the site as needed to retain sediment on- site during restoration. Respondent shall utilize turbidity control devices throughout the restoration including the use of staked filter cloths in the vegetated wetlands and floating screens where needed in the open waters. Within 15 days of the effective date of the Final Order, Respondent shall submit a planting plan and schedule to the Department for approval prior to revegetating the regraded site as identified in Exhibit 2. No work to revegetate the site shall be undertaken until the plan is approved by the Department. Respondent's plan shall address and institute measures necessary to insure successful revegetation. The restoration area shall be planted with indigenous tree species of no less than 2 feet in height, such as Fetterbush (Lyonia Iucida), Sweet Gallberry (Ilex Corjacea), and Sweet Bay Magnolia (Magnolia Virginiana). The trees shall be planted on ten (10) foot centers. Respondent shall implement the restoration plan within 10 days of Department approval. Upon completion of the restoration work required by paragraph c above, Respondent shall maintain the restored area as follows: the revegetation effort shall be considered successful if, after one year or one growing season - whichever is less, 80% of the revegetation effort yield values of less than 80%, then the unsuccessful areas shall be replanted to meet, at a minimum, the required percentage. DONE AND ENTERED this 29th day of March, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 29th day of March, 1993. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esquire Acting General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Richard L. Windsor, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Charles W. Coxwell, Sr. 1133 White Point Road Niceville, FL 32578
The Issue The issue in this proceeding is whether four agency memoranda describing policy on mitigation for dredge and fill projects are unpromulgated rules and were relied on by the agency in violation of Section 120.535(1), F.S. During the hearing, and afterwards in writing, Petitioner sought leave to amend its pleadings to incorporate other policies allegedly relied on by the agency in the process of the dredge and fill application review. That request was denied in an order entered on August 23, 1993. Those policies are addressed in the recommended order in DOAH #93-3367.
Findings Of Fact Petitioner, SIP Properties Limited Partnership (SIP) is the record owner of the parcel at issue, approximately thirty-five (35) acres located in the southwest area of Orlando, Orange County, Florida. SIP proposes to prepare the site for commercial and office use by developing the site into separate parcels or lots with proposed uses such as restaurant or fast food establishments, offices and retail stores. Development of the site requires the construction of compensating storage ponds that will act as retention/detention ponds and filling the site. The proposed improvements will result in the filling of 7.47 acres and dredging of 0.42 acres of wetlands claimed to be jurisdictional by DEP. Based on statements made to SIP by staff regarding department "mitigation policies" applicable to SIP's dredge and fill permit application, SIP believed that department policy memoranda were applied during permit review. SIP attached these various memoranda regarding mitigation to its Petition for Administrative Determination of Violation of Rulemaking Requirement dated May 27, 1993, and identified these memoranda as nonrule policies utilized by the department. The department retains on file and makes available for use by its staff the identified memoranda. However, in this case the department did not rely on or apply the mitigation guidelines contained in the memoranda in SIP's Petition. Instead, it applied Part III of Chapter 17-3120, F.A.C. In Part III of Chapter 17-312, F.A.C., the agency has adopted rules addressing the mitigation issues contained in the memoranda in SIP's Petition. For example, the agency has adopted guidelines in rule 17-312.340(2), F.A.C., for applying ratios when mitigation involves creation of state waters, as in this case. The department presently relies on these rules when reviewing mitigation plans, and does not rely on the policy memos referenced in the petition. Determining the mitigation needed to successfully offset impacts from a project is difficult and depends on many factors, including hydrology, soils, planting methods, and monitoring plans. Determining what is needed to reasonably assure successful mitigation must be done on a case by case basis. Not enough is known about the subject to apply any particular set of directions and expect success. DEP is presently in the process of developing rules to further address most aspects of mitigation.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Environmental Protection issue its Final Order granting SIP's dredge and fill permit #48-2086169, with the mitigation proposed by the applicant, and establishing an expiration date and monitoring and evaluation plan for determining success of the mitigation as provided in rules 17-312.320 and 17-312.350, F.A.C. DONE AND RECOMMENDED this 11th day of January, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings 1.-3. Adopted in paragraph 2. 4.-6. Adopted in paragraph 7. 7.-8. Rejected as unnecessary. 9. Adopted in paragraph 8. 10.-11. Adopted in substance in paragraph 9. 12. Adopted in substance in paragraph 10. 13.-16. Rejected as unnecessary Adopted in paragraphs 11 and 12. Rejected as unnecessary. 19.-21. Adopted in substance in paragraph 13. 22.-23. Adopted in substance in paragraph 14. 24.-25. Adopted in paragraph 15. Adopted in paragraph 16. Rejected as contrary to the weight of evidence. Adopted in paragraph 16. Substantially rejected as contrary to the greater weight of evidence. Adopted in part in paragraph 17, otherwise rejected as immaterial. Rejected as immaterial. Adopted in paragraph 18. Rejected as immaterial. The agency witnesses established that the vegetation along the canal evidences the physical connection and there is evidence that water flows from the site into the canal. Rejected as unsubstantiated by reliable competent evidence. Adopted in substance in paragraph 22. 36.-40. Rejected as unsupported by reliable competent evidence. Rejected as immaterial. Rejected as unsupported by the weight of evidence. Rejected as unnecessary, and as to characterization of merely "relic" wetlands, unsupported by the weight of evidence. Rejected (the conclusion of jurisdictional limit) as unsupported by the greater weight of evidence. 45.-53. Rejected as immaterial or unnecessary. 54.-56. Adopted in paragraphs 33 and 34. 57. Adopted, as to the limited function, in paragraphs 22 and 23. 58. Adopted in paragraph 26. 59.-60. Adopted in paragraph 23. 61. Rejected, as to the absolute conclusion of "no function", as contrary to the greater weight of evidence. 62. Adopted in paragraph 25. 63.-64. Adopted in paragraph 26. Rejected as unnecessary. Adopted in paragraph 30. Adopted in paragraph 34. Adopted in substance in paragraph 31. Adopted in substance in paragraphs 30 and 34. Adopted in paragraph 31. 71.-73. Adopted in paragraph 33. 74.-77. Rejected as unnecessary. 78.-79. Adopted in paragraph 31. 80.-81. Adopted in paragraph 35. Rejected as unnecessary. Adopted in paragraph 33. 84.-90. Rejected as unnecessary. Respondent's Proposed Findings Adopted in paragraph 15. 2.-3. Adopted in paragraph 16. 4.-5. Adopted in paragraph 17. Adopted in paragraph 15. Adopted in paragraph 17. Adopted in paragraph 16. Rejected as unnecessary and as to "binding" effect, unsupported by the weight of evidence. Adopted in paragraph 19. 11.-15. Adopted in substance in paragraph 21. 16. Rejected as contrary to the weight of evidence and inconsistent with proposed findings #18 with regard to the constant level in the canal. 17.-18. Adopted in substance in paragraphs 21 and 23. 19.-21. Adopted in paragraphs 19 and 20. 22.-26. Adopted in summary in paragraph 21. Adopted in paragraph 27. Adopted in substance in paragraphs 1 and 2. Adopted in paragraph 2. Adopted in part in paragraph 16. That the forests are "healthy and viable" is rejected as unsupported by the weight of evidence. Adopted in substance in paragraph 17. Adopted in part in paragraph 25; otherwise rejected as contrary to the weight of evidence. 33.-34. Adopted in part in paragraph 27; otherwise rejected as contrary to the weight of evidence. 35.-37. Rejected as contrary to the weight of evidence. 38.-43. Rejected as unnecessary. 44. Rejected as contrary to the weight of evidence. The stormwater management plan and mitigation will restore the stormwater treatment functions. 45.-47. Adopted in substance in paragraph 30. Rejected as substantially contrary to the greater weight of evidence (as to the negative impact). Adopted in part, as to water quality problems generally, but rejected as to the ultimate conclusion, as contrary to the greater weight of evidence. Rejected as unnecessary. 51.-52. Adopted in summary in paragraph 31. 53.-54. Rejected as cumulative and unnecessary. 55. Rejected as contrary to the greater weight of evidence. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ronald M. Schirtzer, Esquire Martha H. Formella, Esquire R. Duke Woodson, Esquire FOLEY & LARDNER 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 Douglas H. MacLaughlin, Esquire John L. Chaves, Esquire Rosanne G. Capeless, Certified Legal Intern Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether the District should approve Environmental Resource Permit No. 43024788.002 for the construction of a surface water management system to serve the proposed residential subdivision on Westfield’s property in southern Pasco County, and based upon the prior litigation between the parties in DOAH Case No. 04-0003 and the pre-hearing rulings in this case, the issue turns on whether Westfield has provided “reasonable assurances” in relation to the proposed development's potential impacts on Wetland A3 and fish and wildlife.
Findings Of Fact Parties Dr. Blanco is a veterinarian. He grew up on, and has some sort of ownership interest in the property (hereafter “the Blanco property”) immediately to the west of the property on which the proposed development at issue in this case will occur. Dr. Blanco is particularly concerned about the impacts of the proposed development on the ecological health of Wetland A3, a significant portion of which is on the Blanco property. He has spent considerable time over the years observing and enjoying that wetland. Westfield is the applicant for the ERP at issue in this case, and it owns the property (hereafter “the Westfield property”) on which the development authorized by the ERP will occur. The District is the administrative agency responsible for the conservation, protection, management, and control of the water resources within its geographic boundaries pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Chapter 40D. Among other things, the District is responsible for reviewing and taking final agency action on ERP applications for projects within its boundaries. The District includes all or part of 16 counties in southwest Florida, including Pasco County. The Proposed Development (1) Generally The Westfield property consists of 266.36 acres.3 It is located in southern Pasco County on the north side of State Road 54, approximately three miles west of U.S. Highway 41 and less than one-half mile east of the intersection of State Road 54 and the Suncoast Parkway. The Westfield property is bordered on the south by State Road 54,4 on the north by an abandoned railroad right-of- way and undeveloped woodland property, on the east by pastureland and property that has been cleared for development, and on the west by the Blanco property. The development proposed for the Westfield property is a residential subdivision with 437 single-family lots and related infrastructure (hereafter “the Project” or “the proposed development”). The ERP at issue in this proceeding is for the surface water management system necessary to serve the Project. There are 19 isolated and contiguous wetlands on the Westfield property, including Wetland A3, which is partially on the Westfield property and partially on the Blanco property. Wetlands cover 72.69 acres (or 27.3 percent) of the Westfield property. The proposed development will result in 1.61 acres of the existing wetlands -- Wetlands B4 and C4, and a portion of Wetland B12 -- being permanently destroyed. The remaining 71.08 acres of existing wetlands will be preserved. Wetlands B4 and C4 are small (each less than 0.75 acres), shallow, wet depressions in a pasture that have been significantly impacted by livestock grazing and periodic mowing. 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. The proposed development will create 2.89 acres of new wetlands, which means that the Project will result in a net gain of 1.28 acres of wetlands. The created wetlands, referred to as Wetland B2 or the “mitigation area,” are in the northern portion of the property along the abandoned railroad right-of-way and to the east of Wetland A3. The proposed ERP includes a number of special conditions, Nos. 6 through 11, related to the mitigation area. Among other things, the conditions require monitoring of the mitigation area to ensure that it develops into the type of forested wetland proposed in the ERP application. (2) Prior ERP Application The ERP at issue in this case is the second ERP sought by Westfield for the Project. The first ERP, No. 43024788.000, was ultimately denied by the District through the Final Order in Blanco-I. Blanco-I, like this case, was initiated by Dr. Blanco in response to the District’s preliminary approval of Westfield’s ERP application. Administrative Law Judge David Maloney held a three- day final hearing in Blanco-I at which the parties, through counsel, fully litigated the issue of whether Westfield satisfied the regulatory criteria for the issuance of an ERP for the proposed development. On December 17, 2004, Judge Maloney issued a comprehensive, 64-page Recommended Order in which he recommended that Westfield’s ERP application be denied. Judge Maloney determined in his Recommended Order that Westfield failed to provide reasonable assurances as required by the applicable statutes and rules because “[1] it omitted an adequate wildlife survey from the submission of information to the District and [2] it failed to account for seepage from Pond P11 and its effect on Wetland A3 and the Cypress-forested Wetland.”5 In all other respects, Judge Maloney determined that the applicable permit requirements had been satisfied. Dr. Blanco did not file any exceptions to the Recommended Order in Blanco-I. Westfield’s exceptions to the Recommended Order in Blanco-I were rejected by the District, and the Recommended Order was adopted “in its entirety” in the District’s Final Order. The Final Order in Blanco-I was rendered on January 27, 2005, and was not appealed. (3) Current ERP Application On April 29, 2005, approximately three months after the Final Order in Blanco-I, Westfield submitted a new ERP application for the Project. The current ERP application, No. 43024788.002, is identical to the application at issue in Blanco-I, except that the depth of Pond P11 was reduced in certain areas from a maximum of approximately 25 feet to a maximum of approximately 12 feet, an analysis of the potential impact of Pond P11 on Wetland A3 resulting from “seepage” was included with the application, and additional wildlife surveys were included with the application. On July 29, 2005, the District gave notice of its preliminarily approval of the current ERP application. The notice was accompanied by a proposed ERP, which contained a description of the Project as well as the general and special conditions imposed by the District. On August 24, 2005, Dr. Blanco timely challenged the District’s preliminary approval of the current ERP application. The Request for Administrative Hearing filed by Dr. Blanco in this case is identical to the request that he filed in Blanco-I. Disputed Issues Related to the Current ERP Application Impact of Pond P11 on Wetland A3 Dr. Blanco’s primary objection to the Project is the excavation of Pond P11 adjacent to Wetland A3. Wetland A3 is on the western border of the Westfield property and, as noted above, the wetland extends onto the Blanco property. The portion of Wetland A3 that is on the Westfield property is approximately 30 acres, and the portion of the wetland on the Blanco property appears to be slightly larger. Wetland A3 is a large, mature, Cypress-forested wetland. It has been impacted by nearby development and is not a pristine wetland, but it is still a mid to high quality wetland for the area.6 Wetland A3 is part of a larger wetland system that extends northward and westward beyond the abandoned railroad right-of-way that serves as the northern boundary of the Westfield and Blanco properties. Cypress-forested wetlands, such as Wetland A3, are very tolerant of prolonged periods of drought and inundation. The seasonal high groundwater level in Wetland A3 is approximately one foot below the surface in most areas of the wetland. There are, however, areas in Wetland A3 in which water is frequently a foot or two above the surface. The groundwater levels in Wetland A3 have, in the past, been significantly impacted by drawdowns in the aquifer caused by pumping in nearby wellfields. The impact has been less significant in recent years as a result of the reductions in pumping mandated by the Tampa Bay Consolidated Water Use Permit. The planned interconnection of several nearby wellfields is also expected to minimize the drawdowns in the aquifer and should further stabilize the groundwater levels in Wetland A3. Pond P11 will be located adjacent to Wetland A3. There will be a 25-foot buffer between the pond and the wetland. The location of Pond P11 is unchanged from the first ERP application. Pond P11 will have a surface area of approximately 37 acres. The surface area of Pond P11 is unchanged from the first ERP application. Pond P11 is a necessary component of the surface water management system for the Project. It also serves as a “borrow pit” because the soil excavated from the pond will be used on- site as fill for the proposed development. The excavation of Pond P11 to the depth proposed in the current ERP application is not necessary for water storage. The pond could be excavated to the seasonal high water level -- approximately 2.5 feet deep -- and still function as intended as part of the proposed surface water management system. Pond P11 will be used for attenuation, but the pond is also expected to provide at least some amount of water quality treatment, which is an added benefit to Wetland A3 into which the proposed surface water management system will ultimately discharge through Pond P11. The only change made to Pond P11 between the first and current ERP applications was a reduction in the pond’s maximum depth. The pond, which had a maximum depth of approximately 25 feet in the first ERP application, was “shallowed up” in the current ERP application. Pond P11 will now be approximately 12-feet deep at its deepest point, unless the District authorizes excavation to a greater depth in accordance with special condition No. 28. The shallowest area of Pond P11 will be along the western edge of the pond adjacent to Wetland A3 where there will be an expansive “littoral shelf” that will have almost no slope and that will be excavated only to the seasonal high water level.7 There was no change in the design of the surface water management system between the first ERP application and the current ERP application. The reduction in the depth of Pond P11 will have no impact on the operation of the system, which was described in detail in Blanco-I.8 Pond P11 will have a control structure to allow water to be discharged into Wetland A3 near its southern end, which is a more upstream location than water is currently discharged as a result of the ditches that intercept surface water flowing across the Westfield property. This design feature of the surface water management system is intended to mimic historic hydrologic conditions and is expected to increase the hydration of Wetland A3. The ERP includes a special condition, No. 28, relating to the excavation of Pond P11. The condition provides: Maximum depth of excavation will be +38 feet NGVD[9] unless additional field observations and data are provided that support excavation to greater depth, subject to review and approval by District staff. Proposed maximum depths of excavation . . . may be exceeded based upon field observations and approval as specified. Due to the potentially irregular depths to limestone, excavation will be stopped at a shallower depth if confining soils are encountered before reaching the maximum depth specified in Subcondition A, above. A geotechnical field technician will be present on site during the entire excavation process in order to monitor excavated soils. The field technician will be under the supervision of a Professional Geologist or Professional Engineer. For the purposes of the specific project, confining soils are defined as soils with more then 20 percent fines passing a No. 200 sieve. The field technician will be authorized to halt depth of excavation when confining soils are encountered. Excavation may proceed deeper than soils containing 20 percent or more fines if the soils are shown to be an isolated lens of material significantly above underlying confining soils or limestone, as determined by field observations and data subject to approval by District staff. Confining soils do not uniformly overlie the limestone; therefore it is possible that the underlying limestone could be encountered in spite of precautions in Subconditions A and B above. If the underlying limestone is encountered, excavation will be halted in the area of exposed underlying limestone. The area of exposed limestone will be backfilled to a minimum depth of two feet with compacted material meeting the specification of confining soils, having more than 20 percent fines passing a No. 200 sieve. The geotechnical field technician must certify that the backfill material meets this specification. One of the reasons that the ERP application was denied in Blanco-I was that Westfield failed to take into account the potential hydrologic impacts on Wetland A3 caused by “seepage” of water from Pond P11 due to the depth to which the pond was to be excavated and the corresponding removal of the confining layer of soils between the bottom of the pond and the aquifer. After Blanco-I, Westfield retained Marty Sullivan, a professional engineer and an expert in geotechnical engineering and groundwater and surface water modeling, to evaluate the seepage issue and the potential hydrologic impacts of Pond P11 on Wetland A3. Mr. Sullivan developed an integrated or “coupled” groundwater/surface water model to assess these issues. The model was designed to project the change in groundwater levels caused by the proposed development more so than absolute groundwater levels. The model utilized a widely-accepted computer program and incorporated data from topographic and soil survey information maintained by the U.S. Geologic Service; data from soil borings performed on the Westfield property in the vicinity of Wetland A3 in the area where Pond P11 will be located; data from groundwater monitoring wells and piezometers installed around the Westfield property; data from soil permeability tests performed on-site and in the laboratory; data from a rain gauge installed on the Westfield property; and data from the District’s groundwater monitoring wells in the vicinity of the Westfield property. Mr. Sullivan “calibrated” the model based upon known pre-development conditions. He then “ran” the model with the data from the Interconnected Pond Routing (ICPR) model10 used to design of the surface water management system in order to project the post-development groundwater conditions over a simulated ten-year period. Mr. Sullivan’s coupled groundwater/surface water model addresses the shortcoming of the ICPR model set forth in Blanco- I.11 The model projects that the post-development groundwater levels at the western boundary of the Westfield property in Wetland A3 adjacent to Pond P11 will be the same as the pre-development levels during the “wet season” of June to September, and that, on average and during the “dry season” of October to May, the post-development groundwater levels will be 0.3 feet higher than the pre-development levels. Mr. Sullivan summarized his conclusions based upon these projections in a report provided to the District with the current ERP application. The report states that: no adverse hydrologic effects will result from the excavation of Pond P11 and the development of the surrounding area. Particularly, Wetland A3 will be essentially unaffected and will be slightly enhanced by this development. Some additional hydration of wetland A3 will occur due to eliminating the north-south drainage ditch and instead routing runoff to Pond P11, which is adjacent to Wetland A3. The relative differences in the pre- and post- development levels are more important than the absolute levels projected by the model and, in this case, there is almost no difference in the levels. The minimal change in the water levels expected in Wetland A3 will not affect the wetland’s ecological functioning or its viability. A 0.3-foot change in the water level is well within the normal range of hydroperiod fluctuation for Wetland A3. The rate at which water increases and decreases in a wetland can impact wetland ecology and wetland-dependent species. The proposed surface water management system will not increase the surface water discharges from the Westfield property, and in compliance with Section 4.2 of the Basis of Review (BOR),12 the post-development discharge rates will not exceed the pre-development peak discharge rates. There is no credible evidence that there will be an adverse impact on Wetland A3 caused by changes in the discharge rate from the Westfield property through Pond P11 into Wetland A3. The range of error, if any, in Mr. Sullivan’s model is unknown. He has never performed a post-development review to determine how accurately the model predicts the post-development conditions that are actually observed. Nevertheless, the more persuasive evidence establishes that Mr. Sullivan’s model is reasonable, as are his ultimate conclusions based upon the model’s projections. Mr. Sullivan recommended in his report that Pond P11 be excavated no deeper than two feet above the limestone to avoid potential breaches of the confining soils above the aquifer. That recommendation led to the pond being “shallowed up,” and it was incorporated by the District into special condition No. 28. The provisions of special condition No. 28 are reasonable to ensure that excavation of Pond P11 will not breach the confining layer. The standards in special condition No. 28 pursuant to which a geotechnical field technician will monitor the excavation of Pond P11, and pursuant to which the District will determine whether to authorize deeper excavation of the pond, are generally accepted and can be adequately monitored by professionals in the field and the District. There is a potential for the loss of “significant volumes of water” from Pond P11 through evaporation “[d]ue to the sheer size of P11’s open surface area.”13 It is not entirely clear how the evaporation of water from Pond P11 was taken into account in Mr. Sullivan’s model, but it appears to have been considered.14 Dr. Mark Rains, Petitioner’s expert in hydrogeology, ecohydrology, and geomorphology, testified that evaporation from open water is generally about 12 inches more per year than evaporation from a wet meadow or Cypress forest, but he did not offer any specific criticism of the projections in Mr. Sullivan’s model related to the issue of evaporation. In sum, the more persuasive evidence establishes that Wetland A3 is not likely to suffer any adverse ecological or hydrological impacts from the proposed surface water management system and, more particularly, from Pond P11. Westfield has provided reasonable assurances in that regard. (2) Adequacy of the Wildlife Surveys The other reason why the first ERP application for the Project was denied in Blanco-I was that the wildlife surveys submitted with that application were found to be inadequate. Wildlife surveys are not required with every ERP application and, in that regard, Section 3.2.2 of the BOR provides that: [t]he need for a wildlife survey will depend on the likelihood that the site is used by listed species, considering site characteristics and the range and habitat needs of such species, and whether the proposed system will impact that use such that the criteria in subsection 3.2.2 through 3.2.2.3 and subsection 3.2.7 will not be met. Westfield conducted a “preliminary” wildlife assessment in 2001. No listed species were observed, nor was any evidence of their presence on the Westfield property. Nevertheless, as detailed in Blanco-I,15 the District requested that Westfield perform a wildlife survey of Wetlands B4, C4, and B12, because all or part of those wetlands will be permanently destroyed by the proposed development. In an effort to comply with the District’s requests, Westfield conducted additional field visits in 2003 and also performed specific surveys for Southeastern Kestrels and Gopher Tortoises. The field visits “confirmed” the findings from the preliminary wildlife assessment, and no evidence of Southeastern Kestrels and Gopher Tortoises was observed during the surveys for those species. Judge Maloney found in Blanco-I that the wildlife surveys conducted by Westfield were inadequate because they “did not employ the methodology recommended by the District: the FWCC methodology.”16 However, the wildlife surveys were not found to be inadequate in Blanco-I because they focused on Wetlands B4, C4, and B12, instead of evaluating the entire Westfield property and/or all of the potentially impacted wetlands, including Wetland A3. After Blanco-I, a team of qualified professionals led by Brian Skidmore, an expert in wetlands, Florida wetlands ecology, and listed species assessment, conducted additional wildlife surveys of the Westfield property. Mr. Skidmore and his team had performed the preliminary wildlife assessment and the supplemental surveys submitted with Westfield’s first ERP application. The “FWCC methodology” referenced in Blanco-I is a methodology developed by the Fish and Wildlife Conservation Commission (FWCC) to evaluate potential impacts to listed species from large-scale projects, such as developments-of- regional impact and new highways. It is not specifically designed for use in the ERP process, which focuses only on wetland-dependent species. Mr. Skidmore adapted the FWCC methodology for use in the ERP process. The methodology used by Mr. Skidmore was reviewed and accepted by the District’s environmental regulation manager, Leonard Bartos, who is an expert in wetland ecology and ERP rules. The surveys performed by Mr. Skidmore and his team of professionals occurred over a five-day period in February 2005. The surveys focused on Wetlands B4, C4, and B12, and were performed at dawn and dusk when wildlife is typically most active. Additional wildlife surveys of the entire site were performed on five separate days between October 2005 and January 2006. Those surveys were also performed at dawn and dusk, and they included observations along the perimeter of Wetland A3 and into portions of the interior of that wetland on the Westfield property. Mr. Skidmore reviewed databases maintained by FWCC to determine whether there are any documented waterbird colonies or Bald Eagle nests in the vicinity of the Project. There are none. Mr. Skidmore contacted the Florida Natural Area Inventory to determine whether there are any documented rare plant or animal species on the Westfield property or in the vicinity of the Project. There are none. The post-Blanco-I wildlife surveys did not evaluate the usage of the Westfield property by listed species during the wetter spring and summer months of March through October even though, as Mr. Skidmore acknowledged in his testimony, it is possible that different species may use the property during the wet season. The post-Blanco-I wildlife surveys, like the original wildlife surveys, focused primarily on the species contained in Appendix 5 to the BOR -- i.e., wetland-dependent species that use uplands for nesting, foraging, or denning -- but Mr. Skidmore testified that he and his surveyors “were observant for any species,” including wetland-dependent species that do not utilize uplands. No listed wetland-dependent species were observed nesting or denning on the Westfield property. Several listed wetland-dependent birds -- i.e., snowy egret, sandhill crane, wood stork, and white ibis -- were observed foraging and/or resting on the property. Those birds were not observed in Wetlands B4, C4, or B12. The parties stipulated at the final hearing that the determination as to whether Westfield provided reasonable assurances with respect to the statutory and rule criteria related to fish and wildlife turns on whether the wildlife surveys submitted by Westfield are adequate.17 BOR Section 3.2.2 provides that “[s]urvey methodologies employed to inventory the site must provide reasonable assurance regarding the presence or absence of the subject listed species.” The wildlife surveys conducted by Westfield subsequent to Blanco-I in accordance with the FWCC methodology meet this standard. Although the surveys could have been more extensive in terms of the species assessed and the period of time over which they were conducted, the more persuasive evidence establishes that the wildlife surveys are adequate to document the presence or, more accurately the absence of listed wetland- dependent species on the Westfield property. The wetlands that will be directly impacted by the proposed development -- Wetlands B4, C4, and B12 -- do not provide suitable habitat for listed species. Those wetlands are small, low-quality wetlands, and Wetland B12 is technically exempt from the District’s fish and wildlife review because it is a small isolated wetland. There is no credible evidence that there will be any other adverse impacts to fish and wildlife from the proposed surface water management system. For example, even if there are undocumented listed species -- e.g., frogs, snakes, snails, etc. -- in Wetland A3, Mr. Skidmore credibly testified that the expected 0.3-foot increase in groundwater levels in that wetland during the dry season is not likely to adversely affect those species or their habitat because the water will still be below the surface. In sum, Westfield has provided reasonable assurance that the proposed development will not adversely affect fish and wildlife.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the District issue a final order approving Environmental Resource Permit No. 43024788.002, subject to the general and special conditions set forth in the proposed ERP dated July 29, 2005. DONE AND ENTERED this 10th day of April, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 10th day of April, 2006.
The Issue The issue is whether an amendment to Conservation Element policy 6.11.3(3) adopted by Respondent, Bay County (County), by Ordinance No. 09-36 on October 20, 2009, is in compliance.
Findings Of Fact The Parties Diane C. Brown resides and owns property within the County, and she submitted written and oral comments to the County during the adoption process of Ordinance No. 09-36. RMA is a non-profit association with approximately 100 members whose mission is "to ensure that future growth [in the County] is properly managed to maintain the quality and productivity of the local estuarine system." See Petitioners' Ex. 6. The parties have stipulated to the facts necessary to establish that RMA is an affected person. The County is a local government that administers its Comprehensive Plan (Plan). The County adopted the Ordinance that approved the text amendment being challenged here. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. History and Purpose of the Amendment The County adopted its current Plan in December 1999. Section 163.3191(1), Florida Statutes, requires that every seven years each local government adopt an EAR to "respond to changes in state, regional, and local policies on planning and growth management and changing conditions and trends, to ensure effective intergovernmental coordination, and to identify major issues regarding the community's achievement of its goals." In the spring of 2006, the County began the process of preparing an EAR. On October 17, 2006, it submitted an EAR and Supplement to the Department. On December 21, 2007, the Department found the EAR and Supplement to be sufficient pursuant to section 163.3191(2). See County Ex. 7. After approval of the EAR, section 163.3191(10) requires that the local government "amend its comprehensive plan based on the recommendations in the report." Item 15 in the Recommended Changes portion of the EAR recommended that the Conservation Element be amended in the following respect: "The wetland and surface water buffer requirements should be restructured to recognize site-specific conditions such that pristine systems are afforded greater protection than impacted systems." Petitioners' Ex. 35. A similar recommendation is found in the Issues section of the EAR. Id. To implement these recommendations, the County added a second sentence to subsection (3) of Conservation Element policy 6.11.3. As amended, the subsection now reads as follows: (3) Wetland setbacks will be required as specified in Policy 6.7.4 for development on lots or parcels created after the effective date of this policy. Alternate project design and construction may be permitted in lieu of a required buffer when it can be demonstrated that such alternate design provides equal or greater protections to the wetland or its habitat value. On April 16, 2009, the Local Planning Agency conducted a public hearing and recommended approval of the EAR-based amendments. On May 19, 2009, the Board of County Commissioners (Board) voted to transmit the EAR-based amendments to the Department for its review and comments. On July 31, 2009, the Department issued its Objections, Recommendations, and Comments Report. On October 20, 2009, the Board enacted Ordinance No. 09-36, which adopted the EAR-based amendments, including the amendment to policy 6.11.3(3). See County Ex. 2. On December 15, 2009, the Department issued its Notice of Intent to find the amendments in compliance. See County Ex. 8. Notice of this action was published in the Panama City News-Herald on December 16, 2009. See County Ex. 9. Although section 163.3177(6)(d) requires that the conservation element in a comprehensive plan protect wetlands, nothing in chapter 163 or Department rules requires a local government to adopt buffers. Even so, a 30-foot buffer has been in place since the County adopted its first Plan in 1990. Before it was amended, policy 6.11.3(3) provided that "[w]etland setbacks will be required as specified in Policy 6.7.4 for development on lots or parcels created after the effective date of this policy." Thus, it incorporated by reference the buffer zone requirements established in subsection (6) of policy 6.7.4. That provision reads as follows: (6) No building or structure can be located closer than thirty (30) feet from any DEP wetland jurisdiction line, mean high water line, or ordinary high water line except for piers, docks or similar structures and an attendant ten (10) foot wide cleared path through the wetland for purposes of providing access to such structure, or wet- land crossings required to connect dry, upland parcels. All native vegetation, if any exists, will be preserved within the 30- foot setback area. This requirement, including possible alternatives, may be further addressed in the Land Use Code. In short, this provision (a) requires a 30-foot buffer setback area between structures and DEP jurisdictional wetlands and mean or high water lines; (b) requires the preservation of native vegetation in the setback area; and (c) authorizes a 10-foot wide area to be cleared across the setback area to access the water or a dock. However, pursuant to provisions addressed in the Land Use Code (now renamed the Land Development Regulations (LDRs)), alternative project design and construction may be used in lieu of the required buffers. Except for changing the words "Land Use Code" to "Land Development Regulations," policy 6.7.4(6) was not amended in the EAR process. Therefore, all of its requirements remain in place. To address other "alternatives" to the buffer requirements, in September 2004 the County amended section 1909.3.h of the LDRs to allow alternative project design and construction "in lieu of the required buffer when it can be demonstrated that such alternative method provides protection to the wetland or its habitat value that is equal or greater than the vegetated buffer." Petitioners' Ex. 14, p. 19-11. This regulation authorizes the County Planning Commission, on a case- by-case basis through the site plan and variance process, and subject to final approval by the Board, to reduce the 30-foot buffer provided that the reduced buffer is mitigated based upon site-specific circumstances. The processing of these requests has provided the County with experience in approving buffer modifications through the use of alternative methods that provide "equal or greater" environmental benefits. A small number of variances have been authorized by the County under this process since the adoption of the regulation. See County Ex. 10 and 11; Petitioners' Ex. 15-18. In those cases, the County has granted a variance where, for example, the applicant has chosen to cluster wetland access points, elevate walkways in the buffer, enhance the buffer with vegetation or turf, reduce existing stormwater impacts, use swales, or employ other required mitigation to offset the reduction in the buffer. On the other hand, "numerous" other property owners were advised that, absent "special circumstances," a variance would not be granted because the applicant could not demonstrate that there would be an enhanced environmental benefit by reducing the buffer. Under current Plan provisions, a variance is the only way to modify the buffer requirement. The amendment does not eliminate the minimum 30-foot buffer required by policy 6.7.4(6). See Finding of Fact 10, supra. It does, however, provide the County with greater flexibility in approving requests to modify the required buffers and to consider factors that the current Plan does not address. Even though the function and value of wetlands may vary widely, the current Plan makes no distinction between pristine or impacted wetlands, and it does not allow the County to require a larger buffer for a pristine wetland. Under the new policy, the County may establish buffers based on site-specific conditions that consider factors such as location, wetland quality, surrounding land uses, site habitat, and the presence or absence of listed species. This will enable the County, through alternative design and construction techniques, to preserve higher quality wetlands or vegetation with larger buffers while at the same time reducing the buffer size for impacted wetlands in return for mitigation by the owner. The County will also have the flexibility to establish buffers in non-urban settings based on factors other than just erosion potential. The specific process for approving changes in buffer setbacks under the new policy will be established in the LDRs. However, all LDRs must meet the standard in the policy that the alternative design provides "equal or greater protection to the wetland or its habitat value." Under the process envisioned by the County, when a request is made for a buffer reduction under the new policy, the County will require that an analysis be performed by a qualified professional to justify the need for a buffer reduction. If no alternative to a buffer reduction exists, the owner will be required to have a biotic study prepared indicating the extent to which the encroachment would occur, along with justification for the encroachment. Assuming that justification can be shown, the County will then require some form of mitigation by the owner. The effectiveness of the new policy will be monitored, evaluated, and appraised through the use of geographical information system overlay maps. Finally, members of the public, including Petitioners, will be given access to the process through existing notice requirements for development orders. Petitioners' Objections Petitioners contend that policy 6.11.3(3) is internally inconsistent with Conservation Element objectives 6.7 and 6.11; that it is inconsistent with sections 163.3177(6)(d), (8), and (9)(b), 163.3191(10), and 187.201(9); and that it is inconsistent with Florida Administrative Code rules 9J-5.005(2) and (5) and 9J-5.013(1). The essence of the arguments is that the new policy decreases protection for wetlands, that it conflicts with the specific recommendations in the EAR, and that buffers should be based on studies pertaining to wetland setbacks rather than alternative design and construction. To prevail on these contentions, Petitioners must show that even if there is evidence supporting the propriety of the amendment, no reasonable person would agree that the amendment is in compliance. See Conclusion of Law 28, infra. Data and analysis Petitioners contend that the amendment is not supported by adequate and appropriate data and analysis, that the County did not react appropriately to the data and analyses in the EAR, and that the amendment is therefore inconsistent with rules 9J-5.005(2) and 9J-5.013(1) and section 163.3177(8). The data and analysis in the EAR and Supplement, including the Deer Point Reservoir Hydrologic Study, are incorporated by reference into the Plan. See County Ex. 1, Ch. 1, policy 1.1.4.4. As recommended by the EAR, the County reviewed current published scientific literature relating to wetland and surface water buffers. It also conducted a survey of buffer regulations and setbacks in various jurisdictions in the County and throughout the State. As summarized in the EAR, the data and analysis describe the limitations of wetland buffers, including the existing 30-foot buffer; however, they do not suggest that a larger buffer is necessary. Rather, they support the necessity for flexibility in the application of the existing buffer in order to provide equal or greater protection to pristine wetlands, which is the purpose of the new amendment. Petitioners contend that based on current published literature, the County should have reacted to the data and analysis by adopting a series of specific buffer distances up to 300 meters, depending on the type of habitat and wildlife around the wetlands and streams. While the establishment of larger wetland buffers in the Plan is possible, they are not required by state law or Department rules, and section 163.3184(6)(c) provides that a local government does not have to duplicate or exceed a state agency's permitting program. It is at least fairly debatable that the County reacted to the data and analysis in an appropriate manner by adopting a policy that requires that any request for a deviation from the minimum 30-foot buffer be accompanied by a demonstration that the alternative design will provide at least equal or greater protection to wetlands and their habitat values. Internal Inconsistency with Conservation Element Petitioners next contend that policy 6.11.3(3) violates section 163.3177(9)(b) and rule 9J-5.005(5) because it is internally inconsistent with objectives 6.7 and 6.11. The two objectives were not amended during the EAR process. Petitioners contend that the new policy is internally inconsistent with objective 6.7, which requires that the County "[c]onserve and manage natural resources on a systemwide basis rather than piecemeal." Petitioners' evidence does not establish beyond fair debate that the new policy is internally inconsistent with this objective. Petitioners also contend that the policy is internally inconsistent with objective 6.11, which requires the County to "[p]rotect and conserve wetlands and the natural functions of wetlands." Wetlands vary widely in function and value, and the current one-size-fits-all standard does not adequately address the different values and functions. The new policy provides the County with the flexibility to consider numerous site-specific factors and, when warranted, to establish buffers that vary from the 30-foot standard. The evidence shows that the new policy can also assist with the restoration of degraded natural systems to a functional condition. It is at least fairly debatable that the new policy protects and conserves wetlands and their natural functions. Similarly, the policy does not conflict with rule 9J-5.013 and section 187.201(9), which require or encourage that wetlands and other natural functions of wetlands be preserved, as alleged by Petitioners. Consistency with section 163.3191(10) Petitioners contend that the new policy is inconsistent with section 163.3191(10) because the County failed to "amend its comprehensive plan based on the recommendations in the [EAR] report." As a part of this argument, they also assert that, contrary to recommendations in the EAR, the new policy does not give adequate direction for the LDRs; that it contains none of the recommended site-specific criteria needed to evaluate the alternative design; that it fails to include a defined setback size; and that it does not allow the County to increase the size of a buffer. These arguments are based upon item 15 of the Recommended Changes portion of the EAR, which recommends that the County "restructure" the wetland and surface water buffer requirements "to recognize site-specific conditions such that pristine systems are afforded greater protection than impacted systems." Petitioners' Ex. 35. The new policy does not eliminate the 30-foot buffer. See policy 6.7.4(6)("no building or structure can be located closer than thirty (30) feet from any DEP wetland jurisdiction line, mean high water line, or ordinary high water line"). While the policy allows the required buffer to be modified, an applicant must first demonstrate that the alternative design provides equal or greater protection to the wetland or its habitat value. The policy also provides direction for implementing LDRs by requiring that any adopted LDR adhere to the above standard. Notably, through alternative design, the County may require larger buffers for pristine wetlands, while reducing the buffers for those of lower quality in return for mitigation. This is consistent with the EAR recommendation that the County afford pristine systems greater protection than impacted systems. Petitioners further point out that the new policy is flawed because it does not include every site-specific condition mentioned in the EAR. However, there is no requirement for this level of detail in the Plan, so long as the policy achieves the overall recommendation in the EAR, and it provides adequate standards for implementing LDRs. It is at least fairly debatable that the amendment complies with the requirements of the statute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the amendment to policy 6.11.3(3) adopted by the County by Ordinance No. 09-36 is in compliance. DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2011. COPIES FURNISHED: William A. Buzzett, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Deborah K. Kearney, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Diane C. Brown 241 Twin Lakes Drive Laguna Beach, Florida 32413-1413 Alfred E. Beauchemin 705 Beachcomber Drive Lynn Haven, Florida 32444-3419 Lynette Noor, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Terrell K. Arline, Esquire Bay County Attorney 840 West 11th Street Panama City, Florida 32401-2336
