Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a dredge and fill permit be issued to Fairfield to fill 2.1 acres of wetlands and to create 2.1 acres of wetlands as mitigation, including the planting of Spartina to be maintained at an 80% survival rate for a period of five years and the provision of erosion control measures in and adjacent to Lake Avoca and St. Joseph's Sound. Respectfully submitted and entered this 14th day of February, 1986 in Tallahassee, Leon County, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of Feburary, 1986. APPENDIX The proposed findings of fact submitted by the Petitioner and the Respondent Fairfield have been accepted and/or incorporated in this Recommended, except as noted below: Petitioner page 3, 3rd full paragraph, Rejected; not supported last sentence: by competent substantial evidence. page 4, 1st paragraph: Rejected; contrary to the greater weight of the evidence. page 5, 1st full sentence: Accepted, but irrelevant and immaterial to disposition of any issue. pages 5 and 6, starting with Rejected; contrary to the 1st full paragraph: greater weight of the evidence. Respondent Fairfield page 4, 2nd full paragraph: Rejected; mere recitation of testimony and conclusions of law as opposed to factual findings. page 13, 1st paragraph: Rejected: irrelevant and immaterial. NOTE: Many of the proposed findings of fact submitted by the Petitioner and the Respondent Fairfield constitute either recitations of testimony or legal conclusions. While these have not technically been rejected by the undersigned, they are not appropriate for the findings of fact section and are discussed in the conclusions of law. COPIES FURNISHED: Victoria Techinkel Secretary Twin Towers Office Bldg. 2600 Blairstone Road Tallahassee, FL 32301 Mary f. Smallwood General Counsel Twin Towers Office Bldg. 2600 Blairstone Road Tallahassee, FL 32301 William W. Deane, Esquire Hanley and Deane, P.A. 465 Second Avenue North P. O. Box 7473 St. Petersburg, FL 33734 Julia D. Cobb Deborah Detzoff Richard Tucker 2600 Blairstone Road Tallahassee, FL 32301 Terry E. Lewis Steve Lewis Messer, Vickers, Caparello, French & Madsen P. O. Box 1876 Tallahassee, FL 32302 =============================================================== AGENCY FINAL ORDER =============================================================== STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION LEAGUE OF WOMEN VOTERS OF CLEARWATER-UPPER PINELLAS COUNTY, Petitioner, v. DOAH CASE NO. 85-2755 DDT OGC FILE NO. 85-0822 DEPARTMENT OF ENVIRONMENTAL REGULATION and FAIRFIELD COMMUNITIES, INC., Respondents. /
Conclusions On May 11, 2007, the Division of Administrative Hearings (‘DOAH’) submitted a _ Recommended Order (“RO”) to the Department of Environmental Protection (‘DEP’) i in . these consolidated proceedings. Copies of the RO were served upon the Petitioners, Mellita A. Lane, Jacqueline M. Lane, Peter A. Lane, (“Lane Petitioners”); Friends of Perdido Bay,.Inc., and James A. Lane (“FOPB”); and the Co-Respondent, International Paper Company (“IP” ). On May 29, 2007, all Petitioners and Respondent IP filed Exceptions to the RO. Respondent DEP filed Exceptions to the RO and Motion for Remand. ; On June 8, 2007, the FOPB filed a Reply to IP’s Exceptions and a Response to DEP’s Motion for Remand and Exceptions. The Lane Petitioners filed their Response to iP’s and DEP’s Exceptions. Respondent DEP filed Responses to the Exceptions filed . by the FOPB, the Lane Petitioners and IP. Respondent IP filed Responses to the Exceptions of FOPB, the Lane Petitioners and DEP. This matter is now before me for. final agency action. . _ BACKGROUND » Florida Pulp and Paper Company first began operating the Cantonment paper mill in. 1941. St. Regis Paper Company (St. Regis” ) acquired the mill in 1946. In 4984, Champion International Corporation (“Champion”) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such a as printing and writing grades c of paper. In 2001, Champion merged with IP, and IP took over operation of the mill. The primary product of the mill continues to | be printing and writing paper. ' The mill s wastewater effluent i is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. The creek flows southwest into the northeastern portion of Perdido Bay. Elevenmile Creek is a freshwater stream for most of its length but is . sometimes tidally affected one to two miles from its mouth. Elevenmile Creek is designated as a Class I water. Perdido Bay is approximately 28 square miles in area and is bordered by Escambia County on the east and Baldwin County, Alabama, on the west. The dividing line between ‘the states runs north and south in the approximate middle of Perdido Bay. U.S. Highway 98 crosses the Bay, going east and west, and forms the boundary between what is-often referred to as the “Upper Bay” and “Lower Bay.” The Bay is relatively shallow, especially | in the Upper Bay, ranging in depth between five and ten feet. Perdido Bay i is designated asa Class ill water. Sometime around 1900, a manmade navigation channel was cut through the narrow strip of land separating Perdido Bay from the Gulf of Mexico. The channel, called Perdido Pass, allowed the salt waters of the Gulf to move with the tides up into Perdido Bay. Depending on tides and freshwater inflows, the tidal waters can move into the most northern portions of Perdido Bay and even further, into its tributaries and wetlands. The Perdido River flows into the northwest portion of Perdido Bay. Itis primarily a freshwater river but itis sometimes tidally influenced at and near its mouth. The Perdido River was designated an Outstanding Florida Water (“OFW’) in 11979. At the north end of Perdido Bay, between Elevenmile Creek and the Perdido River, isa large tract of land owned by IP called the Rainwater Tract, The northern part of the tract is primarily freshwater wetlands. The southern partis a tidal marsh. Tee and Wicker Lakes are small (approximately 50 acres in total surface area) tidal ponds within the tidal marsh. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to Tee and Wicker Lakes from Perdido Bay. | ' Before 1995, the mill had to have both state and federal permits. The former Florida Department of Environmental Regulation (‘DER’) issued St. Regis an industrial wastewater operating permit in 1982 pursuant to Chapter 403, Florida Statutes. The United States Environmental Protection Agency ("EPA") issued St. Regis a National Pollutant Discharge Elimination System (“ NPDES") permit i in 1983 pursuant to the Clean Water Act. When it acquired the facility in 1984, Champion continued to operate the mill under these two permits. In 1986, Champion obtained a construction permit from DER to install the oxygen delignification technology and other improvements to its wastewater treatment plant (‘WWTP’) in conjunction with the conversion of the production process from an unbleached to a modified bleached kraft production - process. In 1987, Champion applied to DER for an operating permit-for its modified WWITP and also petitioned for a variance from the Class iI water quality standards in Elevenmile Creek for iron, specific conductance, zinc, and transparency. DER's . subsequent proposal to issue the operating permit and variance was formally challenged. In 1988, while the challenges to the DER permit and variance were still pending, Champion dropped its application for the operating permit and requested a . temporary operating permit ("TOP"), instead. In December 1989, DER and Champion entered into Consent Order No. 87-1398 (‘the 1989 Consent Order’). The 1989 Consent Order included an allegation by DER that the mill's wastewater discharge was causing violations of state water quality standards in Elevenmile Creek for dissolved oxygen (“DO”), un-ionized ammonia, and biological integrity. The 1989 Consent Order authorized the continued operation of the mill, but established a process for addressing the water quality problems in Elevenmile Creek and Perdido Bay and bringing the mill into compliance in the future. Champion was required to install equipment to increase the DO in its effluent within a year. Champion was also required to submit a plan of study and, 30 months after DER's approval of the plan of study, to submit a study report on the impacts of the mill's effluent on DO in Elevenmile Creek and Perdido Bay and recommend measures for reducing or eliminating adverse impacts. The study report was also supposed to address the other water quality violations caused by Champion. A comprehensive study of the Perdido Bay system was undertaken by a team of 24 scientists lead by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed bya series of related scientific studies, which are referred to collectively in the RO as “the Livingston studies.” The 1989 Consent Order had no expiration date, but it was tied to the TOP, , which had an expiration date of December 1, 1994. Champion was to be in compliance with all applicable water quality standards by that date. The mill was not in compliance with all water quality standards in December 1 994. No enforcement action was taken by the Department and no modification of the 1989 Consent Order or TOP was formally proposed that would have provided a point of entry to any members of the public who might have objected. instead, the Department agreed through correspondence with . Champion to allow Champion to pursue additional water quality studies and to investigate alternatives to its discharge to Elevenmile Creek. - In 1994 and 1995, Champion applied to renew its state and federal wastewater permits, which were about to expire. The Department and EPA notified Champion that its existing permits were administratively extended during the review of the new permit applications. Today, the Cantonment mill is still operating under the 1989 TOP which, due to the administrative extension, did not terminate in December 1994, as stated on its face. In November 1 995, following EPA's delegation of NPDES permitting authority to the Department, the Department issued an order combining the state and federal ‘operating permits into a single permit identified as Wastewater Permit Number FLO002526-002-IWF/MT. During the period from 1992 to 2001, more water quality studies were conducted and Champion investigated alternatives to discharging into upper Elevenmile Creek, including land application of the effluent and relocation of the discharge to lower Elevenmiie Creek or the Escambia River. . In September 2002, while Champion's 1994 permit renewal application was still pending at DEP, IP submitted a revised permit renewal application to upgrade the WWTP and relocate its discharge. The WwTP upgrades consist of converting toa. modified activated sludge treatment process, incteasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (‘MGD’). IP proposes to convey the treated effluent by-pipeline 10.7 miles to the 1,464-acre wetland tract owned by IP (contained within-the larger Rainwater Tract), where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and Upper Perdido Bay. IP revised its permit application again in October 2005, to obtain authorization to: reconfigure the mill to produce unbleached brown paper for various grades of boxes. If the mill is reconfigured, only softwood (pine) would be used in the new process. On April 12, 2005, the Department published notice of its intent fo issue a proposed permit, consent order, experimental wetland exemption, and waiver. The — Department authorizations would allow IP to change its industrial wastewater treatment system at the mill, construct an effluent distribution system within the wetland tract, construct the 10.7-mile pipeline to transport its treated wastewater to the wetlands, and discharge the treated wastewater into the wetlands. In April 2005, Mellita A. Lane, Jacqueline M. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane (“Lane Petitioners”) filed identical petitions challenging the Department authorizations on numerous grounds. The Department forwarded the petitions to DOAH for assignment of an Administrative Law Judge (“ALJ”) and to conduct an evidentiary hearing. The Lane Petitioners subsequently amended their petitions. In May 2005, Friends of Perdido Bay, Inc., and James Lane filed a petition for | hearing to challenge the Department authorizations. The FOPB petition was forwarded to DOAH and the pending cases were consolidated for the fi nal hearing. The FOPB petition was subsequently amended. In October 2005, while the cases were pending, IP applied for a revision to its NPDES permit renewal application. The cases were abated so that the DEP could review and act on the permit revision. In January 2006, DEP issued a proposed revised | NPDES permit and a corresponding First Amendment to Consent Order. On July 26, 2006, the Department filed without objection a revision to the Consent Order. On July 31, 2006, the Department filed Joint Trial Exhibit 18 that integrated the Consent Order dated April 12, 2005, the First Amendment to Consent Order dated January 11, 2006, and the Department’s Notice of Minor Revision {o Consent Order filed on July 26, 2006. The DOAH Administrative Law Judge CALL") held a lengthy final hearing in these consolidated cases on May 31, June 1, 2, and.26 through 30, and July 17, 27, and 28, 2006. Prior to the hearing, the parties filed their Joint Pre-Hearing sit on May 24, 2006. The ALJ subsequenty submitted his RO on May 11, 2007. -
Findings Of Fact The Parties. The Petitioner, Clifford O. Hunter, is the owner of real property located at Dekle Beach, Taylor County, Florida. Mr. Hunter's property is located at lot 53, Front Street, Dekle Beach, within section 22, township 7 south, range 7 east, Taylor County. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters. Mr. Hunter lived in a home on his Dekle Beach property until a storm in March of 1993 destroyed the home. Mr. Hunter's Application for Permit. On or about June 2, 1993, Mr. Hunter applied for a wetland resource permit to rebuild his home, construct a bulkhead and fill 1750 square feet of salt marsh. The permit was designated No. 62-232123-2 by the Department. Mr. Hunter also sought approval for the construction of a dock. The dock, however, is exempt from the permitting requirements of Rule 17- 312.050(1)(d), Florida Administrative Code. On July 21, 1993, the Department issued a Notice of Permit Denial. The Notice of Permit Denial was received by Mr. Hunter. On August 13, 1993, Mr. Hunter filed a Request for Formal Administrative Hearing with the Department contesting the denial of his permit application. The Department's Jurisdiction Over the Proposed Project. The proposed project involves dredging and filling in the waters of the State of Florida. A wetland resource permit is, therefore, required. Wetland jurisdiction of the State of Florida extends to the eastern edge of an existing concrete slab on Mr. Hunter's property from a canal adjacent to Mr. Hunter's northern boundary. The canal connects with the waters of the Gulf of Mexico. The Gulf of Mexico surrounding Dekle Beach, except for an area extending 500 feet outward from the town limits of Dekle Beach, is within the Big Bend Seagrasses Aquatic Preserve. The preserve is an Outstanding Florida Water (hereinafter referred to as an "OFW"). The evidence presented by the Department to support findings of fact 9, 10 and 11 was uncontroverted by Mr. Hunter. Impact on Water Quality Standards. The weight of the evidence failed to prove that the Mr. Hunter has provided reasonable assurances that the proposed project will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department concerning adverse impacts of the proposed project on water quality standards was uncontroverted by Mr. Hunter. Approval of Mr. Hunter's proposed project would allow the placing of fill in an intertidal area and the elimination of the portion of the intertidal area filled. Intertidal areas help maintain water quality by acting as a filter for water bodies. Mr. Hunter has obtained a variance from the Department of Health and Rehabilitative Services which will allow him to place a septic tank on his property if the permit is granted. The septic tank will leach pollutants. Those pollutants will include nutrients, viruses and bacteria. Because the soil around the septic tank is very saturated, filtering of the pollutants will be low. Pollutants will, therefore, leach into the waters of the State of Florida and adversely impact water quality standards of the canal adjacent to Mr. Hunter's property. Under such circumstances, Mr. Hunter has failed to demonstrate that the project will not lower existing ambient water quality of waters of the State of Florida. Public Interest Test. Mr. Hunter failed to present evidence to support a conclusion that the proposed project will not be adverse to the public interest. Rather, the unrebutted evidence presented by the Department supports a finding that Mr. Hunter's proposed project will not be in the public interest, especially when the cumulative impacts of the proposed project, discussed, infra, are considered. Possible adverse impacts to the public interest include the following: The septic tank which Mr. Hunter will place in the 1750 square feet of filled area will allow fecal coliform, viruses and pathogens to leach into the waters of the canal adjacent to Mr. Hunter's property. Anyone who enters the canal could be infected from bacteria and viruses leaching from the septic tank. The conservation of fish and wildlife would also be adversely affected by the adverse impact on water quality and by the elimination of intertidal area. Recreational value of the canal would be reduced because of the adverse impact on water quality. The proposed project is for a permanent structure. Cumulative Impact. There are a number of applications for permits similar to the application filed by Mr. Hunter which have been filed by property owners of Dekle Beach whose homes were also destroyed by the March 1993 storm. If Mr. Hunter's permit application is granted, the Department will have to also grant most, if not all, of the other similar permit applications. Approximately 20 to 30 other applications involve similar requests which will allow the placement of fill and the installation of septic tanks. The resulting fill and use of septic tanks will have a significant cumulative adverse impact on the waters of the State of Florida. The cumulative impact from leaching effluent from the septic tanks on the waters of the State could be substantial. In addition to the impact on the canal adjacent to Mr. Hunter's property, there will a cumulative negative impact on the ambient water quality of approximately 20 septic tanks on the canals and on the OFW. Errors in the Department's Notice of Permit Denial. The Notice of Permit Denial issued by the Department contained the following errors: An incorrect description of Mr. Hunter's lot number and section number; An incorrect statement that the amount of Mr. Hunter's proposed fill would eliminate 3,200 square feet of marsh; An incorrect statement that Mr. Hunter proposed to fill his lot for a distance of 64 feet waterward. The errors contained in the Notice of Permit Denial did not form any basis for the Department's denial of Mr. Hunter's application. The errors were typographical/word-processing errors. Several notices were being prepared at the same time as the Notice of Permit Denial pertaining to Mr. Hunter. The incorrect information contained in Mr. Hunter's Notice of Permit Denial was information which applied to the other notices. Other than the errors set out in finding of fact 23, the Notice of Permit Denial was accurate. Among other things, it was properly addressed to Mr. Hunter, it contained the project number assigned by the Department to Mr. Hunter's proposed project and it accurately reflected the Department's decision to deny Mr. Hunter's permit application. Mr. Hunter responded to the Notice of Permit Denial by requesting a formal administrative hearing to contest the Department's denial of his application. On December 20, 1993, Mr. Hunter received a letter from the Department which corrected the errors contained in the Notice of Permit Denial. The corrections were also contained in a Notice of Correction filed in this case by the Department on December 20, 1993. The Notice of Permit Denial was received by Mr. Hunter within 90 days after his application was filed. The corrections to the Notice of Permit Denial was received by Mr. Hunter more than 90 days after his application was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing the petition in this case and denying the issuance of permit number 62-232123-2 to Clifford O. Hunter. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Florida. LARRY J. SARTIN 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 April, 1994. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Hunter's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 4. Although Ernest Frey, Director of District Management, Northeast District Office of the Department, did ask Mr. Hunter whether he wanted to sell his property to the State, the evidence failed to prove why Mr. Frey asked this question, that Mr. Frey asked the question in his official capacity with the Department, or that Mr. Frey made the inquiry at the direction or on behalf of the Department or the State. More importantly, the evidence failed to prove that the Department denied the permit sought by Mr. Hunter because of any interest the State may have in purchasing Mr. Hunter's property. See 4. 6-8 No relevant. Not supported by the weight of the evidence. Accepted in 6, 23, 28 and 30. Not a proposed finding of fact. See 8. The "aerial photo, Petitioner's exhibit 6, does not show "No vegetation behind the slab, nearly to the Mean High Water Line . . . ." Respondent's exhibit 3 does, however, show vegetation as testified to by Department witnesses. 13-14 Not supported by the weight of the evidence. Not a proposed finding of fact. Generally correct. Mr. Hunter was not properly put on notice of "alternatives" by the Notice of Permit Denial, as corrected, issued by the Department. Summation: Mr. Hunter's Summation was considered argument and was considered in this case. The Department's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 1 and 4-5. Accepted 6-7. Accepted in 8. 6-9 Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 19. Accepted in 20. Accepted in 15. 17-18 Accepted in 15 and hereby accepted. Accepted in 15 and 20-21. Accepted in 10. Accepted in 22. Hereby accepted. Accepted in 22. Accepted in 12. Accepted in 15-16. Accepted in 17 and 21. 27-28 Accepted in 17. Accepted in 18. Accepted in 13. Accepted in 16. 32-33 The Notice of Permit Denial, as corrected, did not put Mr. Hunter on notice that the alternatives raised by the Department at the final hearing would be an issue in this case. Those alternatives should not, therefore, form any basis for the Department's final decision. Accepted in 24-25. Accepted in 23. Accepted in 25. Accepted in 24 and hereby accepted. Accepted in 26. COPIES FURNISHED: Clifford O. Hunter 1410 Ruby Street Live Oak, Florida 32060 Beth Gammie Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-9730 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue in this case is whether the South Florida Water Management District (SFWMD, or District) should issue a Modification to Environmental Resource Permit (ERP) No. 11- 02055-P, Application No. 060713-9, to G.L. Homes of Naples Associates II, Ltd. (G.L. Homes, or Applicant), which authorizes modifications to the surface water management system (SWMS) for a residential development known as Saturnia Falls (the Project).
Findings Of Fact PARTIES The District is a water management district with the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria, pursuant to the provisions of Part IV, Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, and Sections 373.413, 373.414, and 373.416, Florida Statutes. G.L. Homes is an entity with the administrative, legal, and financial capabilities of undertaking the activity in accordance with the terms and conditions of the 2006 ERP, meeting the criteria in Rule 40E-4.301(1)(j). The Conservancy was duly incorporated in 1966 under the laws of the State of Florida as a not for-profit corporation and has it headquarters in Collier County, Florida. G.L. Homes contests the Conservancy's assertion of "associational standing." But there is no question as to the Conservancy's "citizen standing" under Section 403.412(6), Florida Statutes. The Conservancy has approximately 6,200 members, with approximately 4,200 residing in Collier County. Twenty-five current members in good standing who reside in Collier County were identified during the hearing. The Conservancy's purpose is to "protect and sustain the natural environment of southwest Florida through advocacy, education, research, land acquisition and other lawful means." Specific purposes relevant to the subject matter of this case include: "to acquire and protect sanctuaries, greenbelts, parks, and beaches"; "to assist governing bodies to remedy present pollution and to prevent future pollution of water, air, and our waterfronts and beaches"; and "to encourage and stimulate the interests of residents and visitors to the area, to increase their knowledge of, and to promote the preservation of the southwest Florida natural environment." The Conservancy also asserts standing under Section 403.412(5), Florida Statutes. In furtherance of its corporate purpose, the Conservancy owns approximately 300 acres of land for preservation in Collier County, including a 46-acre parcel located on the Cocohatchee River downstream from the proposed Saturnia Falls development. The Conservancy also conducts scientific research in the waters of the Wiggins Pass Estuary downstream from the proposed Saturnia Falls development, including water quality monitoring and research on seagrass restoration. Further impacts to the water quality in the Cocohatchee River would affect the value of the Conservancy's property for conservation and would affect its interests in research in the area. These interests of the Conservancy would be adversely affected if the 2006 ERP were issued improperly. The Conservancy's assertion of "associational standing" is based on the testimony of eight of its members who engage in various recreational activities, including boating, fishing, bird-watching, nature study, and observation of wildlife. Some visit Corkscrew Swamp Sanctuary and the Corkscrew Regional Ecosystem Watershed (CREW) to view endangered wood storks and other wildlife. Some also visit and recreate in downstream waters, such as the Wiggins Pass Estuary, for fishing, boating, or wildlife observation. These interests would be adversely affected if the 2006 ERP were issued improperly. PROJECT DESCRIPTION AND PERMITTING HISTORY The Project site is located one mile north of Immokalee Road, approximately 2 miles east of 1-75 and lies near the CREW lands in Collier County. The entire Project site consists of approximately 646 acres, of which 533.1 acres are wetlands. The Project has a permitting history dating back to 1997, when the previous owner, Robert Vocisano, applied to construct a development called Wildewood Lakes. The Wildewood Lakes application was denied in 1998, at least in part because wetland impacts were not reduced and eliminated to the extent practicable, and was mediated pursuant to Section 120.573, Florida Statutes. After three years of responding to additional requests for information, the application was submitted to the Governing Board for approval in May 2002. This ERP, referred to as “the 2002 ERP,” authorized the construction and operation of a SWMS to serve a residential and golf course development, discharging to the Cocohatchee Canal via a conveyance channel/Flow-way known as the Mirasol Flow-way (Flow-way). The Flow-way feature was to be built on lands owned by three different property owners, one of whom was the owner of the Terafina Project, and was intended to address flooding and storage criteria in the BOR and alleviate flooding problems in the region that resulted from previous drainage and development projects that altered the natural sheet-flow through the region to the Cocohatchee and Imperial Rivers, and on to the Gulf Coast. As reported in the Staff Report for the 2004 ERP, studies current at the time indicated that, during the initial part of the rainy season, the wetland systems in the vicinity of the proposed Flow- way carried the flow between the Corkscrew Swamp and the Cocohatchee Canal with the peak stages contained with the limits of the wetland areas. However, as the wet season progressed, the wetland vegetation impeded the conveyance of flow and resulted in elevated water stages that inundated properties adjacent to those wetlands, including portions of the eastern half of the Project. There were approximately 288 acres of direct impacts to wetlands under the 2002 ERP. There was a total of 291.20 acres of onsite preserve, including 259.97 acres of wetlands and 31.23 acres of uplands. Part of the Flow-way was to be located within the eastern third of the property (225.74 acres, including 217.80 acres of wetlands and 7.94 acres of uplands), which would be preserved after construction of part of the Flow- way in 23 of those acres. There also would be off-site mitigation in the form of a payment of $1,232,000 "specifically for the purchase of 154 acres . . . of land within CREW, a project within the District's Save Our Rivers Program." Of that total, $712,404 was to be deposited in an account for the land purchase, $437,206 in an account to pay for restoration work within the CREW project, and $82,390 in an escrow account for general operations and maintenance costs incurred by the District within the CREW project. On March 10, 2004, the Governing Board approved a modification to the 2002 ERP authorizing the construction and operation of the Project, at the time known as the Terafina PUD. This ERP is referred to as “the 2004 ERP.” The 2004 ERP removed the golf course and proposed a residential development within the same 646-acre parcel. It also discharged to the Cocohatchee Canal via the Flow-way. The 2004 ERP modified the Project to consist of: single-family residential areas; a recreation area; internal roadway; onsite wetland preserve areas within the development of approximately 73.99 acres; and 210 acres of wetland preserve east of the development, which included the Flow-way, and is referred to as the Eastern Preserve. The 2004 ERP proposed to impact approximately 280 acres of wetlands, slightly less than in the 2002 ERP. To mitigate for the impacts, the 2004 ERP authorized onsite mitigation consisting of the preservation and enhancement of 253.04 acres of wetlands, preservation of 31.27 acres of uplands, creation of 0.1 acres of wetlands, and offsite mitigation by a payment to the District for the purchase, restoration, and management of lands in CREW. Apparently by mistake, the amount of the CREW payment was reduced to $1,001,000, with $418,404 to go into the purchase account, $437,206 to go into the restoration account, and $82,390 to go into the escrow account for general operations and maintenance. In addition, the time for deposit of the funds was extended to June 30, 2004. The District included Special Condition No. 18 in the 2004 ERP, delaying any construction under the 2004 ERP until the Flow-way was completed. However, the United States Army Corps of Engineers (ACOE) refused to permit construction of the Flow-way. On July 13, 2006, G.L. Homes submitted an application to modify the 2004 ERP (the 2006 Application), which is the subject of this proceeding. (A letter modification was issued on October 5, 2006, authorizing installation of a 48" outfall pipe within the Logan Boulevard right-of-way to convey the discharge from the Project to the Cocohatchee Canal. This letter modification was not challenged by the Conservancy and is not at issue in this proceeding.) On November 9, 2006, SFWMD proposed issuance of the 2006 ERP authorizing the construction and operation of the residential development now known as Saturnia Falls (the 2006 ERP). The 2006 Staff Report proposes elimination of the Flow- way, and enhancement and preservation of the 23.5 acres that would have been located in the eastern third of the Project area, similar to the rest of the Eastern Preserve. The SWMS also was altered, and the Staff Report noted that the CREW payment was made in June 2004 in the amount of $1,260,000 "as funding for the off-site mitigation in CREW," which was said to have "provided a substantial amount of up-front mitigation in CREW." The Conservancy did not challenge the 2002 ERP or the 2004 ERP but did challenge the 2006 ERP. THE MODIFIED SURFACE WATER MANAGEMENT SYSTEM In addition to removal of the 23.5-acre segment of the Flow-way from the Eastern Preserve, the current proposal would modify the SWMS under the 2004 ERP by replacing the 80-foot weir at Lake 9, which was the sole final outfall under the 2004 ERP, with two operable Water Control Structures (WCS), located at the eastern (WCS-2) and western (WCS-1) boundaries of the Project, as the final outfall structures. The 80-foot weir in the 2004 ERP consisted of a rectangular notch in the 17.7 foot NGVD berm between Lake 9 and the Eastern Preserve, with a crest elevation of 13.8 foot NGVD and a 5 foot wide, .4 foot deep rectangular notch (that is, with an invert elevation of 13.4 foot NGVD) within the 80-foot weir, which served as a bleeder for water quality. The structure was fixed, and water was to pass freely through the bleeder and over the weir depending on the water levels on either side of the structure. In contrast, the structures proposed in the 2006 ERP are operable based on water levels in the Eastern Preserve. WCS- 1 is located in Lake 4 and discharges to the Cocohatchee Canal via a 48" reinforced concrete pipe located in the Logan Boulevard right-of-way. WCS-2 is located to the east of the development and discharges to the Eastern Preserve and then ultimately to the Cocohatchee Canal. As modified under the 2006 ERP, the SWMS continues to consist of eleven controlled sub-basins with a total area of 397.46 acres. The remainder of the proposed Project also is the same as under the 2004 ERP, including road alignments, type and number of houses, lots, lakes and grading information, and wetland impacts. It is the position of the Applicant and the District that the mitigation proposal also is identical; but Petitioner takes the position that proposed onsite mitigation will be adversely affected by the proposed modifications and that offsite mitigation no longer has the same benefit, so that mitigation no longer fully offsets the wetland impacts. The SWMS is set at the control elevation of 13.4 feet NGVD, which represents the wet season water table (WSWT) for the currently existing wetlands. The seasonal high water level for the wetlands was determined to be approximately 14.0 feet NGVD. When water levels in the Eastern Preserve are below 14.00 feet NGVD (typically in the dry season), the SWMS discharges to the Eastern Preserve through WCS-2, which is located in the perimeter berm to be constructed with sloping banks and a crest elevation of 17.7 feet NGVD between the Eastern Preserve and one of the western wetland preserves, called preserve P-5. WCS-2 consists of a 23-foot weir fitted with an operable bleeder at the control elevation of 13.40 feet NGVD, and a fixed discharge V-Notch weir with an invert elevation of 14.20 feet NGVD, and a crest elevation of 15.40 feet NGVD. This discharge will flow southerly through the Eastern Preserve to the receiving waterbody, the Cocohatchee Canal. WCS-1 will be closed during these periods. The maximum discharge rate under these conditions will be 15.28 cubic feet per second (cfs) to the Eastern Preserve. Based on the hydraulic modeling results, the Eastern Preserve experiences levels below 14 feet NGVD approximately 70% of the time on an annual basis. When water levels in the Eastern Preserve are above 14.00 feet NGVD (typically in the wet season), the SWMS will discharge predominately to the west via WCS-1 to the Cocohatchee Canal. When the water level in the Eastern Preserve reaches 14.00 ft NGVD, the operable bleeder on WCS-2 will close and the operable bleeder/discharge structure on WCS-1 will open. During the 25- year 3-day storm, the maximum discharge rate through WCS-1 is 13.50 cfs. During these conditions, discharge will also occur through the fixed 60-degree V-notch in WCS-2, with a maximum discharge of 2.10 cfs, ensuring bidirectional flow of water so long as the water level in the SWMS stays above 14.20 feet NGVD. The total discharge rate from both structures under this condition is 15.61 cfs. During the 25-year 3-day storm event, water levels in the Eastern Preserve fluctuate from 13.40 feet NGVD to 15.31 feet NGVD. When the water levels in the Eastern Preserve are higher than 14.20 feet NGVD, and the water level in the SWMS is lower than 14.20 feet NGVD, water from the Eastern Preserve will enter into the SWMS through the 60-degree V-Notch in WCS-2. The SWMS is designed to receive water from the Eastern Preserve to provide flood storage and hydrology to the onsite wetlands within the development. THE ERP PERMITTING CRITERIA In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302. In this case, the evidence must be viewed under Rule 40E-4.331(2)(a), pertaining to modification of permits, which requires the District to review permit modification applications “using the same criteria as new applications for those portions of the project proposed for, or affected by, the modification.” The test in this case is not whether the District properly evaluated the 2004 ERP, but whether the areas proposed to be modified or affected by the modification meet the applicable conditions for issuance. Rule 40E-4.301(1) requires an applicant to provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a SWMS: Will not cause adverse water quantity impacts to receiving waters and adjacent lands; Will not cause adverse flooding to on- site or off-site property; Will not cause adverse impacts to existing surface water storage and conveyance capabilities; Will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters; Will not adversely affect the quality of receiving waters such that the water quality standards set forth in Chapters 62- 4, 62-302, 62-520, 62-522, 62-550, F.A.C., including any antidegradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and Rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated; Will not cause adverse secondary impacts to the water resources; Will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Chapter 373.042, F.S.; Will not cause adverse impacts to a work of the District established pursuant to Section 373.086, F.S.; Will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed; Will be conducted by an entity with the sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; and Will comply with any applicable special basin or geographic area criteria established in Chapter 40E-41, F.A.C. The parties stipulated that the Project either complies with Rules 40E-4.301(1)(g),(h),(j), and (k), and Sections 4.3.8, 7.5, and 9.0 of the BOR, or that those rules are not applicable. THE SURFACE WATER MANAGEMENT CRITERIA Water Quantity (Rule 40E-4.301(1)(a)) As indicated, the 2006 modifications eliminate the Flow-way and change the manner in which water flows in and out of the proposed SWMS. Otherwise, there are no changes to the engineered features of the SWMS. Rule 40E-4.301(1)(a) requires that G.L. Homes demonstrate that the Project will not cause adverse water quantity impacts to receiving waters and adjacent lands, and not exceed the capacity of the downstream receiving water bodies. Section 6.2 of the BOR requires that a project be designed so it is consistent with the downstream carrying capacity of the receiving waters. The receiving waterbody for this Project is the Cocohatchee Canal. The allowable discharge rate for the Cocohatchee Canal is 15.9 cfs. The Project’s calculated rate of discharge is 15.6 cfs, so the Project does not exceed the allowable discharge rate. The Project's discharge rate is lower in 2006 (15.6 cfs) than it was in the 2004 ERP (291 cfs). Petitioner argued that the significant difference in discharge rates between the 2006 and the 2004 ERPs violated the District’s water quantity criteria. But the discharge rate calculated in 2004 was associated with the Flow-way and entailed a different overall analysis for the entire area served by the Flow-way. G.L. Homes provided reasonable assurances that the discharge rate allowed for its Project would not be exceeded, as required in Section 6.2 of the BOR. G.L. Homes complied with Section 6.3 of the BOR which requires the 25-year, 3-day storm event to be used when computing the discharge rate for the Project. Section 6.8 of the BOR is entitled “Offsite Lands.” Compliance with this Section requires that a project allow the passage of drainage from offsite areas to downstream areas, which is necessary to demonstrate that off-site receiving waterbodies are not being adversely affected. G.L. Homes complied with Section 6.8 by conducting a hydrologic analysis, using the 25-year, 3-day storm event, which demonstrated that discharge would be directed to WCS-1 and WCS-2, allowing for the passage of drainage from offsite areas to the downstream areas. Section 6.10 of the BOR requires that the design of the Project conserve water and not over-drain wetlands. There is nothing about the modifications that violate Section 6.10. In this case, the control elevations have been set at 13.4 feet NGVD, which is the average WSWT. The WSWT was established using biological indicators to determine the average elevation in the Project’s wetlands during the wet season. Setting the control elevation at the WSWT does not violate Section 6.10. To the contrary, when water levels are at or above the control elevation, the design helps prevent the wetlands from being drawn down below 13.4 feet NGVD, and not over-drain them. The WSWT of 13.4 was permitted in the 2004 ERP. The structures also allow for the interchange of water from the Eastern Preserve into the preserve wetlands within the SWMS. This exchange of water helps preserve the Project’s environmental values. Setting the control elevation at 13.4 also reduces unnecessary runoff from the Project, retaining the water for recharge. In addition, the ability of the SWMS to accept flows from the Eastern Preserve also conserves freshwater by preventing that water from being discharged downstream. As indicated, when water levels in the Eastern Preserve are below the control elevation, no water will enter the SWMS from the Eastern Preserve. During those times, it is possible that wetlands within the SWMS will be drained into the deep lakes dug as part of the project. However, that would not be the result of 2006 modifications but would be inherent in the previously-approved SWMS. The 2006 modifications do not re-open the soundness of that previously-approved part of the design. Section 6.10 also requires that a project not lower water tables so that the existing rights of others would be adversely affected. Again, by setting the control elevations at the WSWT, the water table is not expected to be lowered so as to affect the existing rights of others. The Project also must demonstrate that the site’s groundwater recharge characteristics will be preserved through the design of the SWMS. G.L. Homes complied by setting the control elevations at the WSWT, allowing standing water in the wetland preserves to recharge the groundwater. Section 6.11 addresses Detention and Control Elevations which are intended to assist in complying with the provisions of Section 6.10. By designing WCS-1 and WCS-2 at control elevation 13.4, the Project maintains the detention component and the control (wetland protection) elevations under the previously-approved SWMS. The Required Design Information and Assumptions are contained in Section 8.0 of the BOR. This Section includes various assumptions and information regarding the design of the SWMS. By incorporating these assumptions into the Project, G.L. Homes complied with Section 8.0. Flooding (Rule 40E-4.301(1)(b)) This Rule requires G.L. Homes to demonstrate that the Project will not cause adverse flooding to onsite or offsite property. Section 6.4 requires that building floors be designed to be protected from a 100-year, 3-day storm event. G.L. Homes complied with this provision by providing construction plans demonstrating that the building floors are being built higher than the 100-year, 3-day storm event. Likewise, Section 6.5 pertains to providing flood protection for the Project’s roads and parking lots. G.L. Homes complied with this provision by exceeding the District’s 5-year design criteria, and instead designing the roads and parking lots using the 25-year, 3-day storm event. G.L. Homes was required to comply with the Historic Basin Storage provision in Section 6.7, which requires the Project to replace or otherwise mitigate the loss of historic basin storage provided by the site. In this case, the amount and extent of historic storage that is being displaced by the 2006 ERP is the same as that in the 2004 ERP. However, the replacement or mitigation for loss of historic basin storage is reduced due to elimination of the Flow-way. Instead of relying on the Flow-way to address this criterion, G.L. Homes relied on the “Saturnia Falls Slough Hydraulic Study” prepared by Taylor Engineering, the “Taylor Report” (RJ Ex. 32), which demonstrates the current flood levels in the Eastern Preserve and other adjacent properties and wetlands, and that the Project’s configuration would not affect the basin’s historic storage. Lastly, to demonstrate that the Project will not cause adverse flooding to offsite properties, G.L. Homes was required to comply with Section 6.9, Minimum Drainage. This provision requires that the SWMS recover, consistent with the environmental criteria in 6.10 of the BOR, within 12 days or less. The Taylor Report also demonstrated that the Project will recover from the design storm event in time to provide the required attenuation for the next storm event, while preserving environmental or wetland features. There may be times when the recovery may exceed 12 days, but the need to protect the hydrology of the wetlands required the control elevations to be set at 13.4 ft NGVD. Balanced against Section 6.10, G.L. Homes still complies with Section 6.9. Accordingly, G.L. Homes provided reasonable assurances demonstrating that the 2006 ERP will not cause adverse flooding to on-site or off-site property, satisfying Rule 40E- 4.301(1)(b). Storage and Conveyance (Rule 40E-4.301(1)(c)) Rule 40E-4.301(1)(c) requires that an applicant demonstrate that the proposed development will not adversely impact existing surface water storage and conveyance capabilities. In order to accomplish this demonstration, applicants are to consider the capability of the adjacent properties to both store and convey stormwater runoff from their developments. Section 6.6 of the BOR, entitled Floodplain Encroachment, specifies the parameters by prohibiting a net encroachment into the floodplain, between the average WSWT and the 100-year event, which will adversely affect the existing rights of others. G.L. Homes addressed this criterion through the analysis submitted and contained in the Taylor Report. The Taylor Report used the hydrologic model, HEC-HMS, and hydraulic model, HEC-RAS, to provide a simulation of flood stages propagating through the Eastern Preserve and the adjacent wetland system. This analysis assessed the existing flood stages within the offsite areas, starting at the Cocohatchee Canal and ending approximately 2-3 miles northeast of the eastern boundary of the Project. The analysis captured the expected flood levels during both the 25-year, 3-day and the 100-year, 3-day storm events in the area's current condition, and then compared the analysis of the two storm events considering the Project in its development condition. The analysis relied on the Project’s proposal to remove the current melaleuca infestation from the Eastern Preserve as part of the Project’s post-development condition. The Taylor Report concluded that the removal of such exotics would remove a flow impediment and allow the water to flow through the Eastern Preserve at a higher rate, and therefore at lower flood stages. The Taylor Report made these conclusions while accounting for the development as well as the mitigation-required plantings. The Taylor Report, along with Mr. Hull’s testimony, demonstrated that even with the mitigation reaching full maturity, the removal of melaleuca results in lower flood stages than the study area is currently experiencing. The evidence was that the model used by Taylor Engineering, the HEC-RAS model, is an appropriate model to determine flood stages and to calculate the floodplain conveyance. Furthermore, although Petitioner attacked the choice of inputs, mainly the “Manning’s n coefficients” used to determine the roughness or the friction provided by current and post-development vegetation, the balance of the evidence supports the coefficients contained in the Taylor Report as reasonable and within the ranges of the cited data and models. Petitioner’s expert, Dr. Van Lent, who conducted no analysis of his own, admitted that HEC-RAS was an accepted tool to use for floodplain conveyance and that the other models he suggested are either inappropriate or rarely used by ERP applicants. The Applicant provided reasonable assurances demonstrating that the 2006 ERP will not cause adverse impacts to existing surface water storage and conveyance capabilities, satisfying Rule 40E-4.301(1)(c). However, that is not to say that the 2006 ERP replaces the storage and conveyance capabilities that would have been provided under the 2004 ERP with the proposed Flow-way, which also required removal of melaleuca and required the same mitigation plantings except within the Flow-way itself. To the contrary, storage and conveyance capability under the 2004 ERP clearly would have been greater. Wetland Impacts (Rule 40E-4.301(1)(d)) This Rule provision, while typically associated with the wetland ERP criteria review, also applies to the SWMS through Section 6.12 of the BOR, which requires that a lake system be designed so that an adverse gradient is not created between the lakes and wetland areas. G.L. Homes complied with this criterion by setting the control elevation at 13.4 feet NGVD, the WSWT, for the lake system, the SWMS wetland preserves and the Eastern Preserve, ensuring no gradient (or difference in elevation) between the wetland elevation and the lake elevation. Petitioner argued that additional analysis regarding the timing and levels of inundation in the wetland preserves is necessary to fully determine the impacts to the wetlands. Contrary testimony indicated that setting the control elevations within the development area at the WSWT protects the onsite wetlands and ensures that those wetlands will function as expected. Mr. Waterhouse testified that additional analysis, such as groundwater or evapotranspiration, is not necessary because the Project was designed so that the control elevation that affects the lake levels and the wetlands are the same. The testimony was that, since the control elevation was set using the WSWT, the timing and levels within the wetlands will not be affected by the revised SWMS, and that no additional modeling, as recommended by Dr. Van Lent, is necessary because the SWMS complies with Section 6.12. As indicated, it is questionable on this record whether wetlands within the SWMS will be drained during dry conditions by adjacent deep lakes. No such analysis was presented in evidence in this case. However, such an impact on the wetlands within the SWMS would not be the result of 2006 modifications but would be inherent in the previously-approved SWMS. The 2006 modifications do not re-open the soundness of that previously-approved part of the design. As for the 2006 modifications, the evidence was persuasive that no additional analysis regarding the timing and levels of inundation in the wetland preserves is necessary to determine that the elimination of the 80-foot weir and its replacement with WCS-1 and WCS-2 will not impact the wetlands. Water Quality (Rule 40E-4.301(1)(e)) Rule 40E-4.301(1)(e) requires an applicant to provide reasonable assurances that the Project will not adversely affect the quality of receiving waters such that water quality standards will be violated. Section 5.2 describes the District’s standard water quality criteria. This provision, requiring a minimum of one inch detention of stormwater, is referred to as a “presumptive criterion” because it is presumed that if an applicant provides the required one inch of detention, Class III water quality standards and rule requirements will be met. In this case, G.L. Homes provides one inch of detention in its lake system in the exact manner it did in the 2004 ERP. A difference from the 2004 to the 2006 ERP is the classification of the Cocohatchee Canal, the Project’s receiving waterbody, as impaired for iron and dissolved oxygen (DO). Therefore, G.L. Homes was also required to comply with Section 4.2.4.5 of the BOR to demonstrate that it is not contributing to the impairment. See also Fla. Admin. Code R. 40E-4.301(2). Section 4.2.4.5, entitled "Where Ambient Water Quality Does Not Meet State Water Quality Standards," states as follows: If the site of the proposed activity currently does not meet state water quality standards, the applicant must demonstrate compliance with the water quality standards by meeting the provisions in 4.2.4.1, 4.2.4.2, and 4.2.4.3, as applicable, and for the parameters which do not meet water quality standards, the applicant must demonstrate that the proposed activity will not contribute to the existing violation. If the proposed activity will contribute to the existing violation, mitigation may be proposed as described in subsection 4.3.1.4. To comply, G.L. Homes must show that neither short- term (4.2.4.1) nor long-term (4.2.4.2) water quality impacts will occur. G.L. Homes complied with the short-term requirements by submitting the Construction Pollution Prevention Plan (CPPP), detailing how water quality will be protected during the construction process. In addition to the inch of treatment, the long-term water quality requirement was addressed, in part, by the Urban Stormwater Management Plan (USMP), which details various source controls or best management practices (BMPs) to be implemented once the Project is built and operating. These BMPs help keep pollutants out of the lake system. In addition to the BMPs, the USMP requires G.L. Homes to institute a water quality monitoring plan and submit results to the District for review after the Project is developed. Dr. Harper concurred with Petitioner that the USMP as proposed (in R.J. 28, § 6.0) was deficient in certain respects and recommended that it be clarified or supplemented to specify testing for oxygen, iron, nitrogen, phosphorus, hardness, and a few heavy metals, namely copper, lead, and zinc. Dr. Harper also concurred and recommended that that samples should be collected at both WCS-1 or WCS-2, not just at one of them, depending on which structure is discharging water at the time of sampling. (Dr. Harper confirmed the propriety of testing three times per year, which is a common frequency for monitoring in situations like this.) Mr. Waterhouse agreed with Dr. Harper's additions/clarifications and testified that the USMP, as supplemented and clarified, would comply with District’s criteria. G.L. Homes accepted Dr. Harper's additions/clarifications to the USMP. Another component of Section 4.2.4.5 requires additional assurance for parameters that do not meet water quality standards. The District prepared the “Terrie Bates Water Quality Memo dated June 11, 2004,” referred to as “the Bates Memo,” to provide guidance on the implementation of Section 4.2.4.5 for projects which discharge into an impaired waterbody. The Bates Memo suggests that an additional 50 percent of treatment, among other BMPs, be incorporated into a SWMS. G.L. Homes complied with the Bates Memo because runoff from the lakes, after meeting the one inch detention treatment requirement, spills into the wetland preserves within the SWMS for an additional 50 percent of treatment. In terms of operation of the SWMS, this is no different from the 2004 ERP, but the 2006 ERP simply calculates and takes credit for the additional treatment that was also provided by the onsite wetlands in the 2004 ERP. It is uncontested that the wetland preserves within the development are not impaired and are only required to meet Class III water quality standards. When the stormwater spills into the SWMS wetland preserves, it is presumed to meet Class III water quality standards due to the one inch of detention treatment. Accordingly, the SWMS wetland preserves can be used to provide the additional 50 percent of treatment. The Bates Memo also lists seven BMPs as potential options to consider, in addition to the extra 50 percent treatment volume. G.L. Homes is implementing 6 of the 7 items as follows: (1) the CPPP, which is a stormwater pollution prevention plan; (2) an operation plan or long-term plan addressing routine maintenance is included in the USMP; (3) planting littoral zones; (4) some utilization of onsite wetlands for additional treatment downstream of the SWMS by discharging into the Eastern Preserve wetland system through WCS-2 at times; (5) a site-specific water quality evaluation for the Project’s pre- and post-development conditions is addressed by the Harper Report (RJ Ex. 25); and (6) a Water Quality Monitoring Plan, which is required under the USMP. Petitioner erroneously argued that the Bates Memo does not allow the 50 percent treatment to occur in the preserve wetlands within the development. The argument stems from the phrase “in addition to the extra 50% treatment volume” at the bottom of page 3 of the memo, and bullet No. 5 on page 4, which recommends “treatment in wetlands downstream of the SWMS.” Absent any analysis of her own or any experience in the application of the Bates Memo, Ms. Hecker contended that the Bates Memo precludes the use of onsite wetlands. The argument is contradictory and confusing because Hecker admits that the preserve wetlands within the development are not downstream of the SWMS, and acknowledges that the Eastern Preserve is the wetland downstream of the SWMS. Ms. Hecker, along with Mr. Boler, ultimately admitted that criteria exist allowing the use of wetlands as part of the SWMS. Mr. Waterhouse, who has vastly more experience with the District’s water quality criteria than Ms. Hecker, and participated in the drafting of the Bates Memo, refuted Ms. Hecker’s position about the intent of the Bates Memo, citing to Section 5.3.1 of the BOR as additional support for the use of onsite wetlands for water quality treatment. In addition to these water quality submittals, G.L. Homes also provided a water quality analysis specific to the Project prepared by Dr. Harvey Harper. The analysis, entitled “Evaluation of Water Quality Issues Related to the Saturnia Falls Project” (RJ Ex. 25), referred to as the “Harper Report,” analyzed the Project’s pre- and post-development pollutant loads to help demonstrate that the Project would not contribute to the impairment of the Cocohatchee Canal. The Harper Report estimated the removal efficiency of the SWMS lakes to determine how much pollutant removal would be achieved by the lakes on the Project. Dr. Harper relied solely on the lakes without accounting for any of the additional treatment expected to occur in the wetlands or from the source control BMPs contained in the USMP, which means his report errs on the conservative side in those respects. Although the Canal is impaired for dissolved oxygen (DO), it is uncontested that a nutrient analysis is the appropriate method to assess DO conditions. The Harper Report, as summarized in the table below, concluded that the Project would result in lower post-development loading rates than the pre-development loading rates for nutrients. Nitrogen (N) Pre-Development Total N Load 390.6 kg Post-Development Removal (Dry4) Total N Load 204.99 kg Post-Development Removal (Wet5) Total N Load 194.69 kg Phosphorus (P) Pre-development Total P Load 15.12 kg Post-Development Removal (Dry) Total P Load 5.29 kg Post-Development Removal (Wet) Total P Load 4.49 kg The Harper Report compared the Post-Development Total Basin Loading numbers for P (136.43 kg) and for N (922.57 kg), on an average annual basis, coming from the residential areas (roads and lots) to the Post-Development Removal Loads for P [5.29 kg (dry) and 4.49 kg (wet)] and for N [204.99 kg (dry) and 194.69 kg (wet)] discharging from the lakes after treatment. The calculations demonstrated that approximately 77 percent of N would be removed by the lakes in the dry season conditions and approximately 78 percent would be removed in the wet season conditions. Approximately 95 percent of P would be removed by the lakes in both the dry and wet season conditions. Additional removal and treatment above these percentages is expected due to a number of other source control measures not accounted for in the Harper Report. The Harper Report also concluded that iron discharges from the SWMS would be extremely low and substantially less than the Class III standard of 1 mg/l. Petitioner presented no evidence to counter this conclusion. Petitioner questioned the validity of Harper Report’s use of wetlands as part of the loading calculations, and attacked his underlying methodology. Petitioner's witnesses called it "bad science" to attribute pollutant loading to wetlands because wetlands remove nutrients from the water column and because attributing nutrient loading to wetlands would make it easier to obtain a permit to destroy wetlands. However, none of Petitioner's witnesses were able to credibly defend the position that wetlands cannot contribute to the loading calculations and at times conceded to this fact. Generally, wetlands can in fact contribute some nutrients that pass through without being taken up by wetland vegetation, either because the water is moving through the wetlands too fast or because the nutrient load in the wetland overtaxes the wetland's ability to take up nutrients. That does not necessarily mean that the nutrient load attributable to a wetland will be greater than the load attributable to other post-development land uses. Indeed, the only post-development land use characterized by Dr. Harper as having a lower pollutant load than a wetland was low- intensity commercial, and that was only for total nitrogen. (Dr. Harper's use of data from some distance away in Corkscrew Swamp as the basis for characterizing the pollutant loadings for the onsite wetlands, instead of data from a closer monitoring station in the Cocohatchee Canal weir, was justified; his use of that data instead of collecting data onsite was a valid criticism, but there was not enough evidence in support of that criticism to undermine the additional assurance derived from Dr. Harper's work.) As for the argument that the "Harper method" makes it easier to obtain a permit to destroy wetlands, there are many regulatory criteria other than just water quality that are supposed to be considered before a permit is issued to impact wetlands. Another component of Petitioner’s attack on the Project’s water quality compliance included vague references to an 80 percent removal efficiency. In actuality, the 80 percent removal efficiency is not adopted or incorporated into any District rule criteria. In any event, the Harper Report and other evidence give reasonable assurance that, along with other source controls, the proposed SWMS probably will remove 80 percent of pollutants on an average annual basis. Lastly, the District clarified why Section 4.2.8 of the BOR, regarding cumulative impacts for water quality, was not applicable in this case. Since no contribution or impacts to water quality are expected, a cumulative impacts analysis is not necessary to assess the extent of the impacts. The combination of all these water quality measures, when taken together, give reasonable assurance that the 2006 ERP will not adversely affect the quality of receiving waters such that State water quality standards will be violated, and that Rule 40E-4.301(1)(e) will be satisfied. Engineering Principles (Rule 40E-4.301(1)(i)) Rule 40E-4.301(1)(i) requires an applicant to provide reasonable assurances that the SWMS will be capable, based on generally-accepted engineering and scientific principles, of being performed and of functioning as proposed. Section 7.0 of the BOR specifies implementation of the Rule. Since WCS-1 and WCS-2 are proposed as operable structures, the District is requiring that G.L. Homes enter into an operable Control Structure Agreement with the Big Cypress Basin Board. The agreement provides for the Big Cypress Basin Board to operate and maintain the two operable structures, instead of the Saturnia Falls Homeowners Association. As Mr. Waterhouse explained, this is a reasonable and logical requirement. WETLAND ERP CRITERIA As with the SWMS criteria, the wetland criteria review of this modification compares the Project to 2004 ERP. Functions To Fish & Wildlife And Listed Species (Subsection 40E- 4.301(1)(d)) Rule 40E-4.301(1)(d) requires an applicant to provide reasonable assurances to demonstrate that the construction, alteration, operation, maintenance, removal, or abandonment of a SWMS will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Section 4.2.2 of the BOR provides further specificity to ensure that a project will not impact the abundance and diversity of fish, wildlife and listed species. The 2006 ERP makes no changes or modification to the 280 acres of wetland impacts allowed in the 2004 ERP. Since the impacts remain the same, the 2006 ERP does not modify or affect the values the wetlands provide to either the abundance or diversity of fish and wildlife, compared to the 2004 ERP. Review of this criterion was determined in the 2004 ERP and should not be re- opened. Section 4.2.2.3 of the BOR addresses the functional assessment of the values provided by the Project’s wetlands. The wetland values were not reassessed in the 2006 ERP because the wetland impacts remain the same as in the 2004 ERP. The evidence was that the current value of the wetlands remains low due to heavy melaleuca infestation, with 75 percent coverage in most locations. While Petitioner may disagree with how the current wetlands were evaluated, nothing in this modification request requires a reassessment of their value. Accordingly, the value of the wetlands currently onsite has not changed, and this criteria should not be re-opened. Section 4.2.2.4 of the BOR requires that a regulated activity not adversely impact the hydroperiod of wetlands or other surface waters. Specifically, the criterion states as follows: [An] applicant must provide reasonable assurances that the regulated activity will not change the hydroperiod of a wetland or other surface water, so as to adversely affect wetland functions or other surface water functions as follows: Whenever portions of a system, such as constructed basins, structures, stormwater ponds, canals, and ditches, are reasonably expected to have the effect of reducing the depth, duration or frequency of inundation or saturation in a wetland or other surface water, the applicant must perform an analysis of the drawdown in water levels or diversion of water flows resulting from such activities and provide reasonable assurance that these drawdowns or diversions will not adversely impact the functions that wetlands and other surface waters provide to fish and wildlife and listed species. Increasing the depth, duration, or frequency of inundation through changing the rate or method of discharge of water to wetlands or other surface waters or by impounding water in wetlands or other surface waters must also be addressed to prevent adverse effects to functions that wetlands and other surface waters provide to fish and wildlife and listed species. Different types of wetlands respond differently to increased depth, duration, or frequency of inundation. Therefore, the applicant must provide reasonable assurance that activities that have the potential to increase discharge or water levels will not adversely affect the functioning of the specific wetland or other surface water subject to the increased discharge or water level. Whenever portions of a system could have the effect of altering water levels in wetlands or other surface waters, applicants shall be required to: monitor the wetland or other surface waters to demonstrate that such alteration has not resulted in adverse impacts; or calibrate the system to prevent adverse impacts. Monitoring parameters, methods, schedules, and reporting requirements shall be specified in permit conditions. Subsection (a) applies if the Project was expected to reduce the depth, duration, or frequency of inundation or saturation in any of the Project’s wetlands. Subsection (b) applies if the Project is expected to increase the depth, duration, or frequency of inundation through changing the rate or method of discharge of water to wetlands or other surface waters. Subsection (c) requires monitoring of the wetlands to determine the effects of the hydrological changes. Persuasive engineering and biological testimony demonstrated that no change (neither a reduction nor an increase) in the hydrology on the preserved wetlands or the Eastern Preserve will occur from what was permitted in the 2004 ERP. By analyzing the various biological indicators onsite, control elevations within the SWMS and the wetlands (both the Eastern Preserve and onsite preserve wetlands) were set at 13.4 feet NGVD, which is the WSWT. This matched the control elevation under the 2004 ERP. Ms. Bain and Mr. Passarella both testified that the hydroperiods in the wetlands would remain the same as in the 2004 ERP during normal conditions, the most important indicator of wetland success, and that the wetlands would be unaffected by the modifications. The WSWT is a common indicator of average wet season water levels in a wetland, which generally is the best indicator of maintaining appropriate hydrology and thereby maintaining the expected level of wetland function. However, as indicated, the deep lakes next to preserved wetlands within the SWMS could draw down those wetlands during dry conditions; but the potential lake effect was present in the 2004 ERP. Both Dr. Van Lent and Jason Lauritsen conceded that, with the elimination of the Flow-way, the hydrology in the Eastern Preserve would be better in the 2006 ERP than in the 2004 ERP. But, as indicated, there was no detailed analysis of wetland impacts from the 2006 modifications because G.L. Homes and the District took the position that no detailed analysis was necessary since the control elevation remained unchanged. Petitioner attempts to cast doubt as to the level of data reviewed by the District to conclude that no changes will occur in the hydrology of the wetlands. But the additional modeling recommended by Petitioner is unnecessary and unwarranted in the face of the biological indicators collected from the Project site over several years. These biological indicators are reliable and customary information to use when ensuring compliance with Section 4.2.2.4. They also resulted in the same control elevation that was set in the 2004 ERP. Petitioner never disputed the credibility of the biological indicators, nor did they present any contrary evidence (either a model or otherwise) that purported to show the wetlands would not function as permitted in the 2004 ERP based on these indicators. Instead, they simply asserted that additional analysis should be done. Although not precipitated by this criterion, G.L. Homes will conduct monitoring of the wetlands by implementing the Monitoring Plan as additional reasonable assurances that the wetlands will not be affected. Secondary Impacts To Water Resources (Subsection 40E- 4.301(1)(f)) Rule 40E-4.301(1)(f) and Section 4.2.7 of the BOR require a demonstration that the proposed activities will not cause adverse secondary impacts to the water resources. No secondary impact analysis was done because the site plan and wetland impacts remained unchanged from the 2004 ERP. Additional Wetland Provisions (Subsection 40E-4.301(3) and 40E- 4.302 Subsection 40E-4.301(3) addresses the remaining wetland criteria in the BOR, including mitigation and elimination or reduction of impacts. Rule 40E-4.302(1)(b) addresses the cumulative impacts analysis contained in Section 4.2.8 of the BOR. No assessment of elimination and reduction of wetland impacts was done because the wetland impacts remain unchanged from the 2004 ERP. The 2006 modifications do not warrant another elimination and reduction analysis. No cumulative impacts analysis is necessary because, as in the 2004 ERP, all proposed mitigation for wetland impacts are within the same drainage basin (West Collier) as the impacts. Logically, if the mitigation proposed for the 2006 modifications fully offsets the wetland impacts, there will be no impacts to cumulate with others impacts of other development activities. On the other hand, if the mitigation does not fully offset the impacts, the application will be denied for that reason, without the need for a cumulative impacts analysis. Section 4.3 of the BOR specifies criteria for mitigation proposed as part of an ERP application. Both G.L. Homes and the District took the position that, similar to the wetland impacts, the proposal for both onsite and offsite mitigation did not change from the 2004 ERP, and that no detailed analysis of the mitigation proposal, or comparison to wetland impacts, was required. Indeed, the onsite mitigation proposal--which includes preservation, restoration of wetlands by removing melaleuca, and the creation of four shallow depressional areas for wood stork habitat--remains unchanged from the 2004 ERP, including the Grading and Planting Plan, the Monitoring Plan, and Mitigation, Monitoring and Maintenance Plan. It was proven that the Flow- way footprint never was considered to be either a wetland impact or a part of the mitigation proposal, and that its removal from the Eastern Preserve does not decrease the amount or the value of the mitigation. (Actually, its removal probably increases the value of the mitigation, but the amount of any such increase was not analyzed or quantified.) It also was proven that the onsite wetlands will not be adversely affected as a result of the 2006 modifications so as to decrease their mitigation value, as Petitioner contended. Petitioner also raised the concern that the wetland mitigation within the SWMS would not function as permitted in the 2004 ERP due to the storage of the additional 50 percent within those wetlands, thereby affecting the mitigation assessment. However, as already indicated, when the water reaches those internal wetland preserves, it will have been treated to Class III water quality standards. In addition, operationally, the water also would have been stored in those wetlands under the 2004 ERP; the only difference is that the 2006 modifications calculate and claim credit for the storage, which was not necessary or done for the 2004 ERP. In addition to the onsite mitigation, G.L. Homes previously had been permitted to provide offsite mitigation in the form of a $1.26 million cash payment to the District. The payment was for the purchase, restoration, and enhancement of 154 acres of lands within the boundaries of the District’s environmental restoration project called CREW. Payment of cash for use by the District is addressed in Section 4.3.1.8 of the BOR. These types of offsite mitigation opportunities are referred to as a regional offsite mitigation areas or “ROMAs.” Unlike most mitigation banks, ROMAs, such as CREW, involve a land acquisition component and are owned and operated by the District. G.L. Homes and the District take the position that, under Section 4.3.1.8 of the BOR, and the previous 2004 ERP, G.L. Homes’ responsibilities ended when it paid the cash donation to the District. They take the position that the mitigation is unaffected by the modification, and that re- opening of the offsite mitigation requirement is unwarranted. However, while the Staff Report characterizes the $1.26 million payment as "a substantial amount of up-front mitigation for the proposed wetland impacts," no land in CREW has been purchased as of yet. In addition, the evidence was that, as a result of the passage of time and market forces, it unlikely that 154 acres of land within CREW can be purchased, enhanced, and maintained with the funds paid to the District under the 2004 ERP. Indeed, for a number of reasons, including the lack of willing sellers to participate in the CREW ROMA, in 2004 the District stopped accepting payment of funds to purchase land in CREW as an acceptable form of mitigation for wetland impacts. As a result, it no longer can be said that the proposed mitigation package, which includes and relies on the use of the funds to purchase, enhance, and maintain 154 acres in CREW, fully offsets the proposed wetland impacts. (In addition, under Rule 40E- 4.331(2)(a), any new mitigation proposal would have to analyzed using the Uniform Mitigation Assessment Methodology, Rule 62- 345.100.) Finally, if the offsite mitigation outside the drainage basin is used, a cumulative impact analysis will be necessary. Public Interest Test (Rule 40E-4.302(1) In addition to complying with Rule 40E-4.301, since the Project is located in, on, or over wetlands, G.L. Homes must also address the criteria contained in the Public Interest Test, Rule 40E-4.302 and Section 4.2.3 of the BOR, by demonstrating that the Project is not contrary to the public interest. (Since the Project is not within an OFW or does not significantly degrade an OFW, the higher standard of “clearly in the public interest” does not apply.) The District considers and balances the following seven factors in determining compliance with the test: Whether the regulated activity will adversely affect the public health, safety, or welfare or the property of others (40E-4.302(1)(a)1.); 93. G.L. Homes provided reasonable assurances that the Project will not cause any onsite or offsite flooding, nor will the Project cause any adverse impacts to adjacent lands because the SWMS is designed in accordance with District criteria and the post-development peak rate of discharge does not exceed the allowable discharge rate. The Project is considered neutral as to this factor. However, it appears from the evidence that the 2002 ERP and the 2004 ERP viewed those proposals as positive as to this factor due to the inclusion of the Flow-way in an effort to alleviate regional flooding. Whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats (40E-4.302(1)(a)2.); 94. As indicated, the Project proposes onsite mitigation which has not changed from the 2004 ERP, but passage of time and market conditions have changed the offsite mitigation proposal. As a result, it no longer can be said based on the evidence in this case that the overall mitigation proposal offsets potential impacts to fish and wildlife, including wood stork habitat, even though the mitigation plan for the Eastern Preserve would improve wood stork habitat from its current melaleuca-infested condition. For these reasons, the Project cannot be considered positive as to this factor. Whether the regulated activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling (40E-4.302(1)(a)3.); 95. The Project will not adversely affect navigation. In addition, no evidence was introduced to suggest that the Project’s construction would result in harmful erosion or shoaling. The balance of the testimony pertaining to the flow of water in the Project indicated that it will not be adversely affected. Although there will be reduced discharge to the Eastern Preserve as a result of the 2006 modifications, the Project is considered neutral as to this factor. In contrast, it appears from the evidence that the 2002 ERP and the 2004 ERP would have viewed those proposals as positive as to this factor due to the inclusion of the Flow-way in an effort to alleviate regional flooding. Whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity (40E-4.302(1)(a)4.); 96. The Project does not provide any fishing, recreational values, or marine productivity. Therefore, the Project is neutral as to this factor. Whether the regulated activity will be of a temporary or permanent nature (40E-4.302(1)(a)5.); 97. The Project is permanent in nature and is considered neutral as to this factor because reasonable assurances have not been given that mitigation will fully offset the permanent wetland impacts. Whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S. (40E- 4.302(1)(a)6.); 98. There are no significant archeological or historical resources that will be adversely affected by the Project. In addition, no new information was received by the District indicating that historical resources would be impacted. Therefore, the Project is considered neutral as to this factor. The current condition and relative value of functions being performed by areas affected by the proposed regulated activity (40E-4.302(1)(a)7.); As found, reasonable assurance has not been given that the current condition and relative value of functions being performed by the areas affected by the Project will be fully offset by mitigation. Therefore, the Project should be considered negative as to this factor. On balance, the Project, overall, is negative when measured against these criteria. Accordingly, it must be determined that reasonable assurance has not been given that the Project, as a whole, is not contrary to the public interest.
Conclusions DOAH has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes. Under Section 403.412(6), Florida Statutes: Any Florida corporation not for profit which has at least 25 current members residing within the county where the activity is proposed, and which was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of air and water quality, may initiate a hearing pursuant to s. 120.569 or s. 120.57, provided that the Florida corporation not for profit was formed at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of the notice of proposed agency action. It is concluded that use of virtually the identical statutory language is not mandatory for standing under this statute and that the Conservancy meets the requirements for standing under this statute. Party status under Sections 120.569 and 120.57, Florida Statutes, also can be based on proof that "substantial interests will be affected by proposed agency action." § 120.52(12)(b), Fla. Stat. This requires proof of "an injury in fact which is of sufficient immediacy and is of the type and nature intended to be protected" by the substantive law. § 403.412(5), Fla. Stat. See also Agrico Chemical Co. v. Dept. of Environmental Reg., 406 So. 2d 478 (Fla. 2d DCA 1981). An organization like the Conservancy may allege and prove either that its own substantial interests or those of a substantial number of its members will be affected. See Florida Home Builders Ass'n v. Dept. of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982); Farmworker Rights Organization, Inc. v. Dept. of Health, etc., 417 So. 2d 753 (Fla. 1st DCA 1982). In addition, Section 403.412(5), Florida Statutes, provides: No demonstration of special injury different in kind from the general public at large is required. A sufficient demonstration of a substantial interest may be made by a petitioner who establishes that the proposed activity, conduct, or product to be licensed or permitted affects the petitioner's use or enjoyment of air, water, or natural resources protected by this chapter. The Conservancy made a sufficient demonstration under this statute that the proposed 2006 ERP will affect its use or enjoyment of water and natural resources protected by Chapter 403. As a result, the Conservancy also proved standing under Sections 120.569 and 120.57, Florida Statutes. Because the Conservancy has "citizen standing" under Section 403.412(6), Florida Statutes, as well as standing under Sections 120.569 and 120.57, Florida Statutes, it is not necessary to decide G.L. Homes' challenge to the Conservancy's "associational standing." It also is unnecessary and premature to determine whether any party would be entitled under Section 120.68(1), Florida Statutes, to judicial review of the final order entered in this case as "a party who is adversely affected." It is believed that such a determination, if it becomes necessary, can be made upon the evidence in the record. BURDENS OF PROOF AND PERSUASION This is a de novo proceeding designed to formulate final agency action. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 786-787 (Fla. 1st DCA 1981); and § 120.57(1)(k), Fla. Stat. As an ERP applicant, G.L. Homes has the ultimate burden of proof and burden of persuasion. See J.W.C. Company, Inc., 396 So. 2d at 786-789. In light of the evidence presented in this case, the option suggested in the J.W.C. case to shift the burden of presenting evidence was not useful. ERP CRITERIA The permitting criteria for G.L. Homes' proposed Project are found in Parts I and IV of Chapter 373, Florida Statutes, Florida Administrative Code Chapter 62-345, Florida Administrative Code Rules 40E-4.301 and 40E-4.302, and the BOR, which is adopted by reference in Rule 40E-4.091(1)(a). For its proposed Project to be permitted, G.L. Homes must give reasonable assurance of compliance with those criteria. Issuance of an ERP must be based solely on compliance with applicable permit criteria. See Council of the Lower Keys v. Charley Toppino & Sons, Inc., 429 So. 2d 67 (Fla. 3d DCA 1983). Reasonable assurance contemplates a substantial likelihood that the project will be successfully implemented. See Metropolitan Dade County v. Coscan Florida Inc., 609 So. 2d 644 (Fla. 3d DCA 1992). Absolute guarantees are not necessary, and a permit applicant is not required to eliminate all contrary possibilities or address impacts that are only theoretical and cannot be measured in real life. See City of Sunrise v. Indian Trace Community Development District, et al., DOAH Case No. 91- 6036, 1991 Fla. ENV LEXIS 6997, 92 ER FALR 21 (DOAH 1991, SFWMD 1992); Manasota-88, Inc. v. Agrico Chemical Co. and Department of Environmental Regulation, DOAH Case No. 87-2433, 1990 Fla. ENV LEXIS 38 (DOAH Jan. 5, 1990; DER Feb. 19, 1990). The test in this case is not whether the District properly evaluated the 2004 ERP, but whether the areas proposed to be modified or affected by the modification met the applicable conditions for issuance. When a permittee seeks to modify an existing permit, the District’s review includes only that portion of the existing permit that is proposed to be modified or is affected by the modification. Fla. Admin. Code R. 40E-4.331(2). See also Friends of the Everglades, Inc., v. Dep't. of Envt'l. Reg., 496 So. 2d 181, 183 (Fla. 1st DCA 1986); Behrens v. Boran, ORDER NO. SWF 02-052, ER FALR 257 (SWFWMD Aug. 27, 2002), DOAH Case No. 02-0282, 2002 Fla. ENV LEXIS 192 (DOAH July 29, 2002); Kunnen v. Southwest Fla. Water Mgmt. Dist., ORDER NO.: SWF 02-003, DOAH Case No. 01-2571, 2002 Fla. ENV LEXIS 4 (DOAH Dec. 17, 2001; SWFWMD Jan. 29, 2002). The "reasonable assurance" requirement applies to the activities for which permitting is presently sought and, except to the extent affected by the proposed modification, does not burden the applicant with "providing 'reasonable assurances' anew with respect to the original permit." Friends of the Everglades, supra at 183. Accordingly, Petitioner’s arguments that certain criteria must be revisited because they were not properly addressed in previous permits is irrelevant to this proceeding; but previously-decided criteria must be reviewed again to the extent that proposed modifications affect those criteria. CONSIDERATION OF THE ERP CRITERIA In order to provide reasonable assurances that a Project will not be harmful to the water resources of the District, the applicant must satisfy the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302. In this case, the evidence must be viewed under the rule pertaining to modification of permits. Rule 40E-4.331(2)(a) requires the District to review permit modification applications “using the same criteria as new applications for those portions of the project proposed for, or affected by, the modification.” Surface Water Management Criteria Water Quantity and Flooding Rule 40E-4.301(1)(a) and (b) address adverse water quantity to receiving water bodies and flooding either onsite and offsite. As found, G.L. Homes complied with the applicable criteria to satisfy both of these rules. Storage and Conveyance Rule 40E-4.301(1)(c) requires G.L. Homes to provide reasonable assurances that the Project will not adversely impact storage and conveyance capabilities. As found, the submittal of the Taylor Report provides reasonable assurances that the Project will not adversely affect the conveyance of water. Moreover, although some criticism was aimed at the choice of the friction coefficients used in the Taylor Report, the evidence as a whole proves that the coefficients in the Taylor Report are reasonable and scientifically defensible. Water Quality Rule 40E-4.301(1)(e) requires G.L. Homes to provide reasonable assurances that the Project will not result in adverse water quality impacts. As found, coupled with the clarifications/additions to the USMP suggested by Dr. Harper and accepted by G.L. Homes, the numerous water quality submittals demonstrated compliance with this Rule, including assurances regarding the impairment status of the Cocohatchee Canal. While Petitioner leveled numerous criticisms against the Project’s ability to comply with water quality, none of the criticisms rose to the level of “contrary evidence of equivalent quality.” Taken as whole, and balanced against Petitioner’s lack of equivalent evidence and credible witnesses, the preponderance of the evidence demonstrates that, with the Monitoring Plan additions/clarifications, G.L. Homes meets the District’s water quality criteria. Engineering Principles As required by Rule 40E-4.301(1)(i), G.L. Homes has provided reasonable assurances to demonstrate that the SWMS will be capable, based on generally accepted engineering and scientific principles, of being performed and functioning as proposed. Wetlands Criteria Elimination and Reduction, Secondary and Cumulative Impacts 115. Rules 40E-4.301(1)(f) and (2) and 40E-4.302(1)(b) require G.L. Homes to demonstrate compliance with the following District criteria pertaining to wetland impacts: (1) elimination and reduction; (2) secondary impacts; and (3) cumulative impacts. As found, the 2006 ERP proposes no changes or modifications to the wetlands impacts approved in the 2004 ERP. Therefore, Petitioner’s arguments that these assessments were either not done or done improperly in the previous permit are not valid bases to relitigate those issues. Accordingly, elimination and reduction, secondary impacts, and cumulative impacts addressed in the 2004 ERP are not properly litigated in this modification proceeding, except to the extent that they are affected by the proposed modifications. While the proposed modifications do not affect either elimination and reduction or secondary impacts, they could affect cumulative impacts, depending on whether offset mitigation needed to fully offset wetland impacts is accomplished in the West Collier drainage basin. Wetland Values and Functions to Fish and Wildlife Rule 40E-4.301(1)(d) requires G.L. Homes to provide reasonable assurances that the Project will not adversely impact the value and functions provided to fish and wildlife and listed species by wetlands. Rule 40E-4.301(3) requires an applicant to comply with the District’s mitigation provisions in the BOR. As found, Petitioner’s contention that the revised SWMS affected the values and functions provided to fish and wildlife, particularly the wood stork, was not supported by the weight of the evidence as to onsite mitigation. However, the passage of time and market conditions affected the offsite mitigation proposed and presumably evaluated for the 2004 ERP, and the impacts and mitigation were not re-evaluated for the 2006 ERP. Under Rule 40E-4.331(2), they must be re-evaluated using UMAM, as required by Rule 62-345.100. Public Interest Test The public interest test is limited in scope to only the seven factors set forth in Rule 40E-4.302(2). As found above, after a balancing of the factors, reasonable assurance was not provided that the Project is not contrary to the Public Interest.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the proposed 2006 ERP be denied. If it is granted, it should include the additions/clarifications to the USMP suggested by Dr. Harper and accepted by G.L. Homes. DONE AND ENTERED this 15th day of May, 2007, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2007.
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.
The Issue The issue is whether Respondent Department of Environmental Protection properly determined that Respondent City of Gulf Breeze was entitled to construct a concrete jetty at the mouth of Gilmore Bayou, to widen the mouth of the bayou an additional 35 feet, and to dredge sections of the bayou to a depth of minus eight feet.
Findings Of Fact On March 22, 1996, Gulf Breeze applied for a wetlands resource permit from DEP to allow the following: (a) dredging of the entrance channel to Gilmore Bayou in order to return the channel to its original width and depth; (b) construction of bulkheads on either side of the channel; and (c) construction of two jetties on the east side of the channel to slow the accretion of sediments in the channel. The proposed project is located in the waters of the state at the southwestern end of Gilmore Bayou where it opens into Pensacola Bay. The project is adjacent to and north of 406 Navy Cove Road, in the City of Gulf Breeze, Florida, Section 6, Township 35N, Range 29W. The Petitioner's home is located at 86 Highpoint Drive, Gulf Breeze, Florida. Her residence is downstream from the project at the northeastern end of Gilmore Bayou. The channel at the southwestern end of Gilmore Bayou was originally dredged in the mid-1950s. Since that time, the channel has provided a navigable outlet to Pensacola Bay for use by property and boat owners along Gilmore Bayou. The channel has also provided for water circulation and tidal flushing within the Bayou. Maintenance dredging has been performed almost annually to keep the Gilmore Bayou channel open. The purpose of the proposed project is to reduce the need for the frequent maintenance dredging and to provide for better water circulation in the bayou. A wetlands resource permit to perform maintenance dredging has not been required in the past because that activity was exempt from the permitting process. On July 28, 1997, the Department issued Gulf Breeze a Notice of Intent to Issue Draft Permit Number 572874961 to construct one seventy (70) foot long concrete jetty at the mouth of Gilmore Bayou, widen the mouth of Gilmore Bayou an additional thirty-five feet and dredge sections of the Bayou to a depth of minus eight feet. In issuing the Notice of Intent to Issue, the Department also considered Gulf Breeze's application for a five- year sovereign, submerged land easement for the location of the jetty. Gulf Breeze published the Notice of Intent to Issue in a newspaper of general circulation in accordance with DEP requirements and Section 373.413(4), Florida Statutes, and Rule 62-343.090(2)(k), Florida Administrative Code. Thereafter, Petitioner filed a petition requesting that the permit be denied. Petitioner has a substantial interest in the permitted activity, as she owns property and resides on Gilmore Bayou. Petitioner's request that the permit be denied is primarily based on her opinion that water quality in Gilmore Bayou has deteriorated as a result of the original and continuous dredging of the channel at the southwestern end of Gilmore Bayou. She is concerned that the permitted activity will result in further water quality degradation and result in a further movement of the spit of land which extends in front of her home out to Deadman's Island on the northern side of the Bayou. The ecosystem in Gilmore Bayou today is a healthy system which supports various marshes and fish. The ecosystem thrives despite water quality degradation resulting from development and urbanization along its shores. More specifically, septic tanks, fertilizer runoff, and stormwater discharge have caused water quality to degrade in the Bayou. The most persuasive evidence indicates that the dredging of the channel over time has not caused the water quality to degrade. The permitted activity will have a positive effect on water quality in Gilmore Bayou, as it will enhance tidal flushing through the channel. The jetty, which is a part of the permitted activity, will slow the transport of sand into the channel, allowing for better flushing and reducing the need for maintenance dredging in the channel. Construction of the jetty is recommended and supported by the hyrdographic study of Kenneth L. Echternacht, Ph.D., P.E. Gulf Breeze obtained and submitted this study to DEP to assist in evaluating the project. The permitted activity will have no significant impact on the location of the spit of land extending from Petitioner's property to Deadman's Island. The shifting of the spit of land over the years has been caused by numerous factors which are identified in a 1993 study by Dr. James P. Morgan, Ph.D. These factors include development of the area, erosion of the surrounding bluffs, the location of the Pensacola Bay bridge, and storms and sand drift into channels to the east of the spit. Without this project or frequent maintenance dredging, the channel at the southwestern end of Gilmore Bayou would fill with silt. Eventually, the silt would inhibit water circulation and result in further water quality degradation in the bayou. The permitted activity is not contrary to the public interest. Instead, it will benefit the public interest. The project will make it possible to maintain the Gilmore Bayou channel more efficiently. The project will allow for increased flushing of the bayou. The increased flushing will improve water quality in the bayou. The permitted activity will not have any adverse effect on the conservation of fish or wildlife, or any endangered species or their habitats. The permitted activity will not adversely affect navigation or flow of water or cause any harmful erosion or shoaling. It will have a positive effect on navigation and water flow and act to prevent harmful erosion or shoaling. The permitted activity will have no adverse effect on fishing or recreational values or marine productivity in the vicinity of the project. The permitted activity will provide for permanent jetties and bulkheads at the entrance to Gilmore Bayou. The permitted activity will have no adverse effect on historical or archeological resources on Deadman's Island or in the vicinity of the project. The permitted activity will have a positive impact on the recreational functions and use of the channel and Deadman's Island.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Department of Environmental Protection issue a Final Order determining that its Notice of Intent to Issue Permit, together with Permit No. 572874961, is final agency action. DONE AND ENTERED this 6th day of February, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1998. COPIES FURNISHED: Mary Jane Thies, Esquire Beggs and Lane Post Office Box 12950 Pensacola, Florida 32576-2950 Ricardo Muratti, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Patricia J. Moreland 86 Highpoint Drive Gulf Breeze, Florida 32561 Matt E. Dannheisser, Esquire 504 North Baylen Street Pensacola, Florida 32501 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
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
