Findings Of Fact The Petitioner, James M. Brown, d/b/a Ramrod Development Company, is seeking to develop as residential property, the subject land on Ramrod Key, Monroe County, Florida, adjacent to the Torch Ramrod Channel. The specific filling project which is the subject of this hearing involves Mariposa Road and Angelfish Road which lie within the property described above on Ramrod Key and which appear on a subdivision plat filed in the official records of Monroe County in 1960 and on revisions of that plat, one of which was filed in 1963 and the more recent of which was filed in 1969. Since February 9, 1960, Monroe County has been the owner of that roadway known as Mariposa Road located on Ramrod Key and which is depicted on the subject plat of Ramrod Shores, Marina Section. Since the county became the owner of that roadway in 1960, through the date of the hearing, it has never given authorization or approval for any person, firm or corporation to place fill material or any other matter upon that dedicated roadway (which includes a section of Angelfish Road as well as Mariposa Road). Monroe County, Florida, has given the Department of Environmental Regulation authorization to require removal of fill material placed on any dedicated county roadway in violation of any law or administrative rule of the Department. On January 27, 1977, the Department personnel visited the subject site and determined dredge and fill activities had indeed taken place on a tidal Red Mangrove fringe area on the shore line of Torch Ramrod Channel without an appropriate permit issued by the Department. The Petitioner, James M. Brown, in sworn testimony, in the earlier proceeding here involved (DOAH Case No. 78- 1234), admitted that since 1969 he has, on numerous occasions, placed fill material in the Mariposa and Angelfish Road areas, which are the subject matter of this proceeding. He also admitted doing so without a permit issued by the Department of Environmental Regulation (See testimony of Brown in DOAH Case No. 77-1409, Atwater vs. Department of Environmental Regulation). In the earlier proceeding involving the Petitioner, DOAH Case No. 78- 1234, Mr. Sayward Wing described the placing of fill on the northern end of Mariposa Road by Monroe County, but this area is not the area now in controversy, which is on the southern part of Mariposa Road from its intersection with Angelfish Road south to Old State Road 4A. Witness Wing in that proceeding did not observe the county or its agents or employees place any fill in the subject area of Mariposa or Angelfish Road. The fill placed on Mariposa Road, between Old State Road 4A and the intersection with Angelfish Road, by the Petitioner, contained approximately 96 cubic yards of fill as of January 27, 1977. The fill placed on Angelfish Road from the Mariposa Road intersection westerly approximately 50 feet, contained approximately 178 cubic yards of fill as of that same date. The area west of Mariposa Road where the dredge and fill work was performed is predominantly vegetated by red mangroves (rhizophora mangle). The red mangroves are then superseded by white mangroves (laguncularia racemosa), black mangroves (avicennia germinans), as well as transitional vegetation. The red mangroves are the dominant vegetative species in the area. These species are found in the vegetative index which defines the Department's jurisdiction in Section 17-4.02, Florida Administrative Code. Witnesses Meyer and Kurer observed large numbers of small fish, predominantly gambusia affinis, in the inundated mangrove area lying on the west side of Mariposa Road. A fringe of red mangroves 50 to 80 feet wide vegetates the area east of Mariposa Road, along the Torch Ramrod Channel shoreline. The sandy mud intertidal and shallow subtidal water bottoms in this area are vegetated by benthic algae and sea grasses. The red mangroves are also the dominant species in this area. Benthic algae (halimeda sp., penicillus sp., gracellaria sp.) and sea grasses (thallassia testudinum and halodule wrightii) are also found in the vegetative index contained in Section 17-4.02, Florida Administrative Code, which delineates the Department's jurisdiction over State waters. The sampling and observations conducted by witnesses Kurer and Meyer in this area yielded silver side anchovies, mosquito fish, killifish, lane snapper, toadfish, needlefish, blennies, barracuda, various juvenile fish species, stonecrabs, amphipods, blue crabs, pink shrimp, isopods, nemerteans, polychaetes, tunicates, gastropods, and bivalves. The mangroves described, as well as associated wetland vegetation found in the area, provide filtration of sediments and nutrients contained in stormwater run-off from adjacent upland areas, as well as from tidal flows. This filtering process is essential in maintaining water quality in the adjacent open bay estuarine or marine system. The nutrients in the tidal waters as well as run-off waters are stockpiled in the sediments retained by the mangrove roots and are transformed into vegetative leaf matter by the mangroves as they live and grow. The extensive root system of the mangroves and their associated vegetation also provides stabilization of estuarine shoreline sediments and attenuation of storm-generated tides. Mangrove wetlands provide unique and irreplaceable habitats for a wide variety of marine as well as upland wildlife species. The Petitioner's activities, conducted without the appropriate approval and permit, have resulted in the alteration of the chemical, physical and biological integrity of State waters in the area of Mariposa and Angelfish Roads by the destruction of wetlands which provide food and habitat for wildlife, and which provide a filtrative and assimilative capacity to remove nutrients and other pollutants from the adjacent bay waters. the discharge of fill on to the mangrove areas, in waters of the State, has resulted in harm and injury to the biological community that existed there before the activity was completed. Specifically, as the testimony of Mr. Helbling (a biologist and water quality expert) establishes, the mangrove community to the east of Mariposa Road was shown not to be in a stressed condition in 1977 or at the time of the hearing. Mr. Helbling's testimony also establishes, however, that the mangrove system to the west of Mariposa Road, in effect inland from the filled portion of the road, is now in a stressed condition as manifested by mangrove trees in this area which area dead, or in the process of dying. This stress is caused primarily by the fact that the waters in the mangrove system to the west of Mariposa Road are impounded by the fill and no longer experience tidal flow or exchange daily. Therefore, being impounded, they are becoming more and more saline through the process of evaporation, to the extent that the mangrove trees are being poisoned. The mangrove tree community was not in this stressed condition in 1977 when this witness first observed it, but is at the present time. The primary reason for the imminent loss of this mangrove community is thus due to Mariposa Road being filled to such a level that there is no longer any tidal exchange of water with Torch Ramrod Channel. Witness Kurer established that the proposed plan of restoration set forth in the Department's exhibit two in Case No. 78-1234 and which has been adopted and admitted into evidence herein, would constitute an acceptable resolution of the dispute at bar. Removal of the fill would allow tidal exchange across Mariposa and Angelfish Roads and allow the mangrove system to restore itself and contribute to the protection and enhancement of the productive and valuable marine resource system in the adjacent bay area. Thus, the discharge of fill on to the mangrove areas involved herein which is within waters of the State, has resulted in harm and injury to that biological community which existed there before the activity was commenced and completed. The quality of waters in the Florida Keys is directly related to the degree of shoreline development by activity such as that undertaken by the Petitioner. The greater the degree of shoreline alteration, then the greater the degree of deterioration in water quality and the greater damage to biological productivity. The mangroves, in addition to their valuable filtrative function, also contribute leaf or detrital matter to the surrounding State waters and estuarine system in the form of decayed leaf litter. This organic component forms the basis of the marine food chain and is used directly for food by a variety of marine organisms, including small fish. A variety of important commercial and sports fish species feed directly on the mangrove detritus or on those fish or other forms of marine life which themselves feed on the detrital matter. Consequently, the destruction of the mangroves contributes directly to the deterioration of water quality through the loss of their filtrative function, as well as to the deterioration of an economically and biologically important sports and commercial fishery. Consequently, the restoration plan proposed by the Department is more of a desirable alternative than leaving the fill in place, in that it would restore the mangrove vegetation which provides the filtrative, assimilative functions in removing nutrients and other pollutants, and also provides food and habitat for fish and wildlife. The Petitioner's activities continue to be a source of pollution which was created without an appropriate and valid permit issued by the Department.
Recommendation In consideration of the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses and pleadings and arguments of counsel, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order denying the application for an "after the fact" permit. That a Final Order be entered requiring the Petitioner to completely restore the unauthorized fill site to its original contours and elevations and to revegetate the affected area, pursuant to a restoration plan and compliance schedule approved by the Department, which restoration plan and compliance schedule should be supplied to the Department by the Petitioner within 20 days subsequent to the effective date of the Final Order herein; and that the Petitioner be required within 20 days following approval of the said restoration plan to commence the restoration work which shall be accomplished in such a fashion as to prevent further damage to the marine and estuarine environment involved. It is further required that Petitioner complete the said restoration plan and project within 60 days following the approval of the restoration plan by the Department. DONE AND ENTERED this 21st day of September, 1981, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981. COPIES FURNISHED: David Paul Horan, Esquire 513 Whitehead Street Key West, Florida 33040 H. Ray Allen, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue There are two main issues in this case. The first is whether Respondent, NNP-Bexley, Ltd. (NNP-Bexley), has provided Respondent, Southwest Florida Water Management District (the District), with reasonable assurances that the activities NNP- Bexley proposes to conduct pursuant to Environmental Resource Permit (ERP) Application No. 43013740.004 (the Permit) meet the conditions for issuance of permits established in Sections 373.413 and 373.414, Florida Statutes (2007), Florida Administrative Code Rules 40D-4.301 and 40D-4.302, and the Environmental Resource Permit Information Manual, Part B, Basis of Review (BOR).1 The second is whether Petitioner, Dr. Octavio Blanco (Blanco), participated in this proceeding for an improper purpose so as to warrant the imposition of sanctions under Section 120.595(1), Florida Statutes.2
Findings Of Fact Blanco is a resident of Pasco County, Florida. Blanco is a trustee and beneficiary of an unrecorded Land Trust Agreement, dated December 19, 1996, known as Trust Number 99. The Trust holds title to real property (the Blanco Property) located to the south of the NNP-Bexley property. The Blanco property is approximately 100 acres and primarily agricultural. It has a narrow frontage along State Road (SR) 54, and is directly east of the Suncoast Parkway. A wetland known as Wetland A3 is partially located on the northern portion of the Blanco property. NNP-Bexley is a Florida limited partnership between the Bexley family and NNP-Tampa, LLC, and is the applicant for the ERP at issue in this case. Newland Communities, LLC, is the project manager for NNP-Bexley under a project management agreement. The ERP at issue in this case would authorize construction of a new surface water management system to serve Phase I of the Bexley Ranch Development of Regional Impact (DRI), which is a 6,900-acre mixed use, residential community. Phase one consists of a 1,717-acre residential subdivision in Sections 7, 8, and 16-20, Township 26 South, Range 18 East, Pasco County, Florida (the Subject Property), with 735 residential units, both single and multi-family, and associated improvements, including widening SR 54 and constructing Sun Lake Boulevard and Tower Road (collectively, the Project). The Subject Property is located North of the Blanco property. Like the rest of the land subject to the Bexley Ranch DRI, the Subject Property is predominantly agricultural land used for raising cattle, sod farming, and tree farming. There is little native vegetation and limited habitat value for wildlife in the uplands. The Subject Property is composed of approximately 654 acres of wetlands and 1063 acres of uplands. Most of the wetlands will be preserved, including many as part of a wildlife corridor along the Anclote River that is proposed to be dedicated to Pasco county. The Bexley Ranch DRI has been extensively reviewed. Including the DRI approval, it has received 23 separate development approvals to date. A Site Conditions Assessment Permit (SCAP) issued by the District established existing conditions on the NNP-Bexley Property for ERP permitting purposes, including wetland delineations, wetland hydroperiods, pre-development flows, drainage flow patterns, and the pre- development flood plain. The SCAP was not challenged and is not subject to challenge in this proceeding. Surface Water Management System The Subject Property accepts off-site drainage flows from the east and from the south. All drainage exits the Subject Property to the west, into property owned by the District. There is a culvert under an abandoned railroad crossing between the Subject Property and the Blanco property that directs surface water flows into the Subject Property. That culvert controls water elevations on the Blanco property. The surface water management system consists of a series of wet detention facilities, wetland creation areas, and floodplain mitigation designed to control water quality, quantity, and floodplain elevations. The design of the surface water management system was optimized and environmental impacts were reduced by using created wetlands for floodplain attenuation. Information from the SCAP was used to create pre- development and post-development Inter-connected Pond Routing (ICPR) computer models of drainage relevant to the Subject Property. The ICPR models were used to design a surface water management system that will avoid adverse on-site or off-site impacts and provide required water quality treatment. The ICPR models showed that the in-flows and out-flows to and from the Project site will not be adversely impacted by the proposed activities. The proposed surface water management system will not cause adverse water quantity impacts to receiving waters or to adjacent land, including Dr. Blanco's property. The Phase I project will not cause adverse impacts to existing surface water storage and conveyance capabilities and will not adversely affect the quality of receiving waters such that state water quality standards will be violated. The proposed water quality treatment system utilizes ponds for treatment and attenuation. Flow will be controlled by outlet structures. During construction, best management practices will be used to control sediment run-off. The surface water management system provides adequate water quantity and quality treatment and is designed to meet the criteria in Section 5.2 and BOR Section 6. Wetlands and Associated Impacts The wetlands within the Subject Property consist primarily of moderate-quality forested wetlands that have been selectively logged in the past. Previously isolated wetlands have been connected by surface water ditches. Through multiple iterations of design, direct wetland impacts from the Project were reduced from 86 to approximately of the 654 acres of wetlands on the Subject Property. Of those 24 acres, almost half are man-made surface water ditches. There will be direct impacts to 13.6 acres of wetlands that will require mitigation, which is approximately two percent of the total wetlands on the Subject Property. Most of the direct wetland impacts are the result of required transportation improvements such as roadway crossings. Secondary impacts also were considered. However, the proposed ERP requires a minimum of 15 feet and an average of 65 feet of buffer around wetlands on the Subject Property. The uplands have been converted into improved pasture or silviculture that lack native vegetation and have limited habitat value. According to the evidence, given buffers that exceed the District's criteria of a minimum 15 feet and average feet, no "additional measures are needed for protection of wetlands used by listed species for nesting, denning, or critically important feeding habitat"; and any secondary impacts from the expected residential development on a large percentage of the uplands on the Subject Property and subsequent phases of the Bexley DRI are not considered to be adverse. See BOR Section 3.2.7. Extensive wildlife surveys were conducted throughout the breeding season at all relevant times for sand hill cranes, wading birds, and all listed species. No colonies of listed bird species, such as wood storks, herons, egrets, or ibises, were found on the Project site; and no listed species was found to utilize the site for nesting. Mitigation Under the proposed ERP for the Project, approximately 80 acres of wetlands are to be created for floodplain attenuation and mitigation to offset unavoidable wetland impacts. The proposed mitigation areas are to be excavated to relatively shallow depths and planted. All the mitigation is on the Subject Property. The State's mandated Uniform Mitigation Assessment Method (UMAM) was used in this case to determine the amount of mitigation "needed to offset adverse impacts to wetlands and other surface waters." Fla. Admin. Code R. 62-345.100(1). Generally, UMAM compares functional loss to wetlands and other surface waters to functional gains through mitigation. In applying UMAM in this case, it does not appear that NNP-Bexley considered any functional loss to wetlands and other surface waters from the use of a large percentage of the uplands on the Subject Property and subsequent phases of the Bexley DRI for residential development. Apparently, impacts resulting in any such functional loss to wetlands and other surface waters were treated as secondary impacts that were not considered to be adverse because they were adequately buffered. See Finding 17, supra. In addition, "the amount and type of mitigation required to offset . . . [s]econdary impacts to aquatic or wetland dependent listed animal species caused by impacts to uplands used by such species for nesting or denning" are evaluated and determined by means other than "implementation of Rules 62- 345.400 through 62-345.600, F.A.C." Fla. Admin. Code R. 62- 345.100(5)(b). In any event, the undisputed evidence was that the uplands have been converted into improved pasture or silviculture that lack native vegetation and have limited habitat value, and there was ample evidence that UMAM was used properly in this case to determine the amount of mitigation "needed to offset adverse impacts to wetlands and other surface waters." Id. Without any evidence to the contrary, the evidence in the record is accepted. Based on the accepted UMAM evidence, wetland impacts resulted in 6.36 units of functional loss. The functional gain of the proposed mitigation calculated using UMAM is 18.19 units, more than offsetting Project impacts to wetlands on the Subject Property. Proposed Excavations for Ponds and Wetland Creation Blanco's expressed concerns focus on a 30-acre wetland to be created in the southwest corner of the Subject Property for mitigation with a secondary benefit of floodplain compensation credit. Referred to as M-10, this wetland is proposed to be created by excavating uplands to a depth of approximately two and one half feet, which is approximately half a foot below the seasonal high water line (SHWL). Because it is controlled by the railroad culvert near the property boundary, Wetland A3 will not be negatively impacted by M-10. It will not lose water to M-10 or any of the proposed excavations except in periods of relatively high rainfall, when those outflows would benefit Wetland A3. In addition, the existing Tampa Bay Water pipeline and the proposed Tower Road, located between the Blanco Property and the Subject Property, would restrict any drawdown effects from impacting Wetland A3. Mr. Marty Sullivan, a geotechnical engineer, performed an integrated ground and surface water modeling study to evaluate the potential for impacts to Wetland A3 from the excavation of a large-sized pond on the adjacent Ashley Glen property as part of a project that also was the subject of an ERP administrative challenge by Petitioner. Petitioner's challenge concerned impacts to Wetland A3 from excavation of an adjacent pond, known as P11. Mr. Sullivan's modeling demonstrated that there would be no adverse impacts to the hydrology of Wetland A3 from the Ashley Glen excavation although P-11 was larger and deeper than M-10, and much closer to Wetland A3. The bottom of P-11 came within 2 feet of limerock, in contrast to the minimum 10 foot separation in M-10. The Bexley and Ashley Glen sites are substantially similar in other respects, and the Ashley Glen modeling is strong evidence that M-10 would not adversely impact Wetland A3 or the wetlands on the Subject Property. Approximately 50 test borings were conducted throughout the 6,900-acre DRI site. The borings were done after considering the locations of wetlands and proposed activities. Test borings in Phase I were performed on the west side of the Subject Property. The findings from the test borings indicate that there is an inconsistent semi-confining layer that overlies the DRI site. Limestone varies in depth from 15 feet to 50 feet below the surface. Based upon the findings from the test borings, excavations for stormwater ponds are a minimum of 10 feet above the top of the limestone layer, meaning the semi-confining unit materials that cover the limestone will not be encountered or breached. Given the excavation depths of the various ponds, no adverse draw-downs are expected that would cause the groundwater table to be lowered due to downward leakance. While initially water would be expected to flow or move through the ground from existing wetlands on the Subject Property to the new M-10 wetland, water levels will stabilize, and there will be enough water for the existing wetlands and for M-10. There will be more water in the southwestern corner of the Subject Property for a longer period of time than in pre- development conditions. NNP-Bexley provided reasonable assurance that there will be no adverse impacts to Wetland A3 or the existing wetlands on the Subject Property from M-10 or any of the proposed excavations. Other Conditions for Permit Issuance The Project was evaluated under the public interest test found in Rule 40D-4.302. The evidence was that the public interest criteria have been satisfied. The Project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. The applicant has provided reasonable assurance that the construction, operation, and maintenance of the system will meet the conditions for permit issuance in Rule 40D-4.301 and 40D4.302. Improper Purpose Blanco has a history of opposing projects near his property, with mixed results. In this case, after Blanco learned of NNP-Bexley's application for an ERP, he met with Ms. Brewer on April 20, 2006, to discuss it. At the time, specifics were not discussed, but Blanco let Ms. Brewer know that his successful opposition to an earlier project by Westfield Homes resulted in significant expenditures by the developer and eventually the abandonment of the project by that developer. Blanco warned Ms. Brewer that, if NNP-Bexley did not deal with him to his satisfaction, and he challenged NNP-Bexley's application, NNP-Bexley would risk a similar fate. In August 2006, Blanco arranged a meeting at the University of South Florida (USF) with Ms. Brewer, NNP-Bexley's consultants, Blanco, and USF hydrologists, Drs. Mark Stewart and Mark Rains. At the time, Blanco's expressed concern was the impact of the NNP-Bexley project on Wetland A3. As a result of the meeting, it was agreed that there would be no impact on Wetland A3, primarily because it was upstream and its water elevations were controlled by the downstream culvert to the south of the Bexley property. Nonetheless, Ms. Brewer agreed to limit excavations in the southwest corner near the Blanco property and Wetland A3 to a depth of no more than two and a half feet, instead of the 12 feet being proposed at the time. NNP-Bexley made the agreed changes to the application and proceeded towards obtaining approval by the District. When Blanco learned that the NNP-Bexley project was on the agenda for approval by the District Board at its meeting in March 2008, Blanco took the position that NNP-Bexley had reneged on an agreement to keep him informed and insisted on an urgent meeting. At this third meeting with Ms. Brewer and some of her consultants, Blanco was told that the only change to the application was the one agreed to at the meeting at USF in August 2006. Not satisfied, Blanco asked that the application documentation be forwarded to Dr. Stewart for his evaluation. He mentioned for the first time that he was concerned about an increased risk to the Blanco property and Wetland A3 from wildfires starting on the Bexley property, spreading south, and utilizing dry muck resulting from the dewatering of wetlands in the southwest corner of the Bexley property as fuel. Blanco requested that the approval item be removed from the Board's agenda to give Dr. Stewart time to evaluate the documentation and advise Blanco. Blanco stated that, if forced to challenge Board approval, he would raise numerous issues arising from the entirety of the application, not just the muck fire issue and not just issues arising from activities in the southwest corner of the Bexley property. Ms. Brewer refused to delay Board approval for the reasons given by Blanco. When told that the item would not be removed from the agenda, Blanco stated that he would not challenge an approval that limited the excavations to the SHWL. NNP-Bexley refused because it was necessary to dig the pond to a half foot below the SHWL in order to create a mitigation wetland. At that point, Blanco proposed that he would not challenge a Board approval if: vegetation was removed from the mitigation areas to reduce the risk of wildfires; a fire break was constructed along Tower Road and mowed periodically; NNP-Bexley agreed in writing to never deepen the mitigation pond M-1 in the southwest corner of the Bexley property; and NNP-Bexley paid Blanco $50,000 for him to install a well for use in fighting any wildfire that might approach the Blanco property and Wetland A3 from the north. Ms. Brewer agreed to all of Blanco's demands except for the $50,000 payment. Instead, she offered to pay for construction of the well, which she believed would cost significantly less than $50,000. At that point, the negotiations broke down, and Blanco filed a request for a hearing. The District denied Blanco's first request for a hearing and gave him leave to amend. In the interim, the Board voted to approve NNP-Bexley's application, and Blanco timely- filed an amended request for a hearing. The amended request for a hearing did not mention fire risk. Instead, it resurrected the issue of dewatering Wetland A3, as well as wetlands on the Bexley property, caused by the excavation in the southwest corner of the Bexley property, which would "result in destruction of functions provided by those wetlands that are not accounted for by the District." The amended request for a hearing also raised numerous other issues. After Blanco's former attorney-of-record withdrew without objection, Blanco's present counsel-of-record appeared on his behalf and requested a continuance to give Blanco time to determine whether either Dr. Stewart or Dr. Rains would be willing to testify for him if the hearing were re-scheduled. That request was denied. During a telephonic prehearing conference on September 8, 2008, Blanco asked to add Mr. Patrick Tara, a professional engineer, to his witness list. This request was denied as untimely. Mr. Tara was available but was not permitted to testify at the final hearing; instead, Blanco was allowed to file an affidavit of Mr. Tara as a proffer. Blanco's request to present expert evidence on fire hazards from muck fires in dry conditions was denied as irrelevant under the District's ERP conditions of issuance. Essentially, Blanco presented no evidence to support any of the allegations in his amended request for a hearing. Blanco maintained in his testimony that he filed and persisted in this challenge on the advice of his experts, Drs. Stewart and Rains, and after September 8, 2008, also on the opinions of Mr. Tara. For that reason, Blanco was given the opportunity to file affidavits from Drs. Stewart and Rains, in addition to the affidavit of Mr. Tara, in support of his expressed basis for litigating this case. Respondents were given the opportunity to depose Drs. Stewart and Rains if desired. Drs. Stewart and Rains, as well as Mr. Tara, all told Blanco essentially that the excavation proposed in NNP-Bexley's plans for development probably would have adverse impacts on the surrounding wetlands. However, none of them told Blanco that there would be adverse impacts on Wetland A3; Drs. Stewart and Rains clearly told Blanco that there would be no adverse impacts on Wetland A3. It does not appear from his affidavit that Mr. Tara focused on Wetland A3, and there is no reason to believe that he disagreed with Drs. Stewart and Rains with regard to Wetland A3. As to the wetlands on the Bexley property surrounding the excavation in the southwest corner of the property, any potential impacts from excavation that Drs. Stewart and Rains might have discussed with Blanco prior to the USF meeting in August 2006 were reduced after NNP-Bexley agreed to limit the depth of the excavation to two and a half feet. When asked about the revised excavations again in February or March of 2008, Dr. Stewart essentially told Blanco that even the shallower excavations would make the surrounding wetlands on the Subject Property drier during dry conditions and that any such impacts could be eliminated or minimized by either limiting the excavation to the SHWL or by maintaining a buffer of undisturbed land around the excavation. Dr. Rains agreed with Dr. Stewart's assessment. Contrary to Blanco's testimony at the final hearing, there is no evidence that Dr. Stewart, Dr. Rains, or Mr. Tara ever advised Blanco to file and persist in this challenge. In their depositions, Drs. Stewart and Rains specifically denied ever giving Dr. Blanco such advice. Likewise, there is no evidence that any of them had any opinions to give Blanco about risk of fire hazards. In their depositions, Drs. Stewart and Rains specifically denied ever giving Blanco such opinions. There are additional discrepancies between Blanco's testimony and the deposition testimony of Drs. Stewart and Rains. Blanco swore that Dr. Stewart was unable for health reasons to testify for him. In his deposition, Dr. Stewart denied that his health entered into his decision. He told Blanco from the outset that he would not be willing to testify as Blanco's expert. Dr. Stewart only cursorily examined the materials Blanco had delivered to him and only responded to Blanco's questions in generalities. Most of their conversations consisted of Blanco bringing Dr. Stewart up-to-date on what was happening in the case. Blanco swore that Dr. Rains planned to testify for him at the scheduled final hearing until unexpected events made it impossible. In his deposition, Dr. Rains testified that he never agreed to testify as Dr. Blanco's expert and that his unavailability to testify at the final hearing was made known to Blanco when he was first asked to testify at the scheduled final hearing. He never even opened the box of materials Blanco had delivered to him and barely spoke to Blanco at all about hydrology. Most of Dr. Rains' communications with Blanco had to do with Dr. Rains' unavailability to participate. Based on all of the evidence, it is found that Blanco's participation in this proceeding was for an improper purpose--i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity." His more recent dealings with Drs. Stewart and Rains and Mr. Tara seem more designed to obtain or infer statements for Blanco to use to avoid sanctions than to obtain actual evidence to support a valid administrative challenge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order issuing ERP No. 43013740.004 to NNP-Bexley. Jurisdiction is reserved to determine the appropriate amount of attorney's fees and costs to be awarded under Section 120.595(1), Florida Statutes, in further proceedings consolidated with NNP-Bexley's requests for Sections 57.105 and 120.569(2)(e), Florida Statutes. DONE AND ENTERED this 17th day of November, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2008.
The Issue The issue to be determined in this case is whether 1044PVB, LLC (“Applicant”), is entitled to Environmental Resource Permit (“ERP”) No. IND-109-143282-1 from the St. Johns River Water Management District (“District”), authorizing the construction of a surface water management system to serve a proposed residential development in St. Johns County, Florida.
Findings Of Fact The Parties Petitioner Nancy Condron is a resident and landowner in St. Johns County. Her residence is located across Ponte Vedra Boulevard from the Project. Petitioner uses the nearby Guana River Wildlife Management Area for nature-based recreation, including hiking and bird-watching. Applicant is a foreign limited liability company and the applicant for the ERP at issue in this case. The District is an independent special district granted powers and assigned duties under chapter 373, Florida Statutes, including powers and duties related to the regulation of construction activities in wetlands. The Project is within the boundaries of the District. The Project Site The Project site is 17.13 acres located at 1044 Ponte Vedra Boulevard in St. Johns County, Florida. The site currently consists of forested lands on the east and west and pasture areas in the middle. There is an existing trail road that runs the length of the property and a small residence. The site has four small ponds excavated as watering holes, ranging in size from 0.04 to 0.24 acres. There are 4.41 acres of wetlands and other surface waters on the site. There is a 3.49-acre area of mixed forested wetland on the site that continues offsite to the south and west. There are also three isolated wetlands on the site, each less than a half-acre in size. The wetland system adjacent to the Project site flows to the Guana River. The Guana River is a freshwater, Class III waterbody. It is an Outstanding Florida Water, but has been designated by the Department of Environmental Protection as impaired for nutrients. The site is not used by threatened or endangered species for feeding, nesting, or breeding. The Project The proposed Project is a 22-lot, single-family subdivision. The proposed surface water management system for the Project includes curb and gutter paved roadways, storm inlets, concrete pipes, vegetated natural buffers, treatment swales, and a wet detention stormwater pond. The wet detention stormwater pond would discharge into adjacent wetlands that flow to the Guana River. Wetlands The point of discharge from the Project’s stormwater management system is not in the designated Outstanding Florida Water. Applicant proposes to fill the four ponds and the three isolated wetlands. Applicant also proposes to fill 0.28 acres of the larger wetland. The Project includes a number of upland buffers that are a minimum of 15 feet in width and average of 25 feet in width. These buffers are intended to prevent potential adverse secondary impacts to adjacent wetlands. All wetland impacts and mitigation were assessed using the Uniform Mitigation Assessment Method (UMAM) in Florida Administrative Code Rule 62-345. The UMAM assessment takes into consideration the location and landscape support, water environment, and community structure of the wetlands to be impacted. The District also considers the condition, hydrologic connection, uniqueness, location, and the fish and wildlife utilization of the wetlands and other surface waters. The District did not require mitigation for filling the artificial ponds. The District also did not require mitigation for filling the isolated wetlands because each is less than a half-acre in size. As mitigation for filling 0.28 acres of the larger wetland, Applicant would purchase 0.25 mitigation bank credits from the St. Marks Pond Mitigation Bank. The St. Marks Pond Mitigation Bank is located in the same drainage basin as the wetland area that would be filled. The District determined that purchasing the mitigation bank credits would offset the functional loss associated with filling part of the wetland. Two areas on the site where no upland buffers are proposed were assessed for secondary impacts to wetlands in the UMAM evaluation. The mitigation bank credits proposed for the Project would offset all of the adverse, direct, and secondary impacts to wetlands or surface waters associated with this Project. Because direct and secondary impacts would be fully mitigated, the Project would not cause cumulative impacts. Water Quantity A majority of the Project’s stormwater runoff would be conveyed to the wet detention pond. The wet detention pond provides water quantity protection by attenuating the post- development peak rate of discharge. Applicant modeled the pre-development peak rate of discharge and the post-development peak rate of discharge. The modeling indicated that the post-development peak rate of discharge will not exceed the pre-development peak rate of discharge for the 25-year, 24-hour storm event. Section 3.3 of the Applicant's Handbook, Volume II, prohibits a reduction in the 10-year or 100-year floodplain for projects with an upstream drainage basin of five square miles or greater. The proposed Project has an upstream drainage basin of 4.6 square miles, so this criterion is not applicable. Applicant showed the Project would increase offsite flood elevations by only 0.01 feet, which is negligible. The Project would not cause adverse water quantity impacts to receiving waters or adjacent lands. Water Quality Water quality would be managed in the Project through a combination of wet detention pond, swales, and vegetative natural buffers (“VNBs”). The wet detention pond would treat a majority of the runoff from the Project. Section 8 of the Applicant’s Handbook, Volume II, contains presumptive criteria for the design of a wet detention pond. The proposed wet detention pond meets the presumptive criteria. Therefore, the detention pond is presumed to provide reasonable assurance that the water quality of receiving waters will be protected. Applicant is proposing to construct swales at the back of Lots 20, 21, and 22 to treat runoff by infiltration. Section 9 of the Applicant’s Handbook, Volume II, contains presumptive criteria for swale system design and performance. The Project meets the presumptive criteria for swales. Applicant is proposing VNBs on Lots 1 through 14. The use of VNBs is a commonly-used best management practice accepted by the District for treating stormwater runoff. Like swales, VNBs treat runoff by infiltration. Stormwater runoff from the backyards of Lots 1 through 14 would drain to the VNBs. On some of these lots, stormwater runoff from the front yards, side yards, and rooftops would also drain to the VNBs. The lots would be graded so that runoff would sheet flow to the VNBs to maximize their treatment function. The VNBs would have native soils and plants. The VNBs would have Type A soils, which are well-drained soils that provide the highest rate of infiltration and the most permeability. Petitioner contends that, because soil borings were not taken at the location of the VNBs, reasonable assurance was not provided that the VNBs would function as proposed. However, Petitioner did not show that the soils at the VNB locations were unsuitable soils. In addition, Applicant agreed to use Type A soils in the VNBs. Therefore, reasonable assurance that the VNBs would have suitable soils was provided by Applicant. Petitioner referred to a draft rule to support her contention that the proposed VNBs are not properly designed, but the draft rule has no controlling effect and is hearsay. The Applicant’s Handbook does not contain presumptive criteria for VNBs. Applicant demonstrated that the VNBs would infiltrate 80 percent of the runoff from a three-year, one-hour storm event, which is the same treatment efficiency the District requires when swales are used. Reasonable assurance was provided that the VNBs would function as proposed. Because the Project would discharge to wetlands that flow to the Guana River, a waterbody impaired by nutrients, section 2.2 of the Applicant’s Handbook, Volume II, requires Applicant to demonstrate there would be a net improvement in water quality with respect to nutrients. Applicant performed a pollutant loading analysis using the BMPTRAINS model. The BMPTRAINS model is a generally-accepted tool used by stormwater engineers for this purpose. The BMPTRAINS model incorporates the information about the pre- and post-development conditions associated with land use and impervious area. The model accounts for site-specific conditions, including the elevation of the groundwater table and storage capacity of the soil. The design of the surface water management system is then incorporated into the model to estimate the pollutant removal efficiency and estimate the average annual pollutant load that will leave the site. Applicant’s BMPTRAINS modeling indicated that the average annual post-development loading for total nitrogen and total phosphorus would be substantially less than the pre- development loading for those nutrients. Therefore, Applicant demonstrated the Project would result in a net improvement. Operation & Maintenance The Ponte Vedra Beach Preserve Homeowners Association would be the entity responsible for operation and maintenance of the stormwater management system. The wet detention pond, swales, and VNBs would be located within an easement and maintained by the homeowner’s association. Applicant and the Ponte Vedra Beach Preserve Homeowners Association have the ability to accept responsibility for the operation and maintenance of the Project. Public Interest An applicant for an ERP must demonstrate that a proposed project affecting wetlands and other surface waters would not be contrary to the public interest. This determination is made by balancing seven factors found in section 10.2.3(a) through (g) of the Applicant’s Handbook, Volume I. Public interest factor (a) is whether the regulated activity will adversely affect public health, safety, or welfare, or the property of others. There is no aspect of the Project that would affect public health, safety, or welfare, except the potential for flooding. Reasonable assurance was provided by Applicant that the Project would not cause flooding. Factor (b) is whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats. The mitigation bank credits offset all of the potential adverse impacts that the proposed project would have on the conservation of fish and wildlife. Factor (c) is whether the regulated activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The parties stipulated that the Project will not adversely affect navigation or cause harmful erosion or shoaling. The record evidence shows the Project will not adversely affect the flow of water. Factor (d) is whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. The Project would not affect fishing or recreational values in the vicinity. The mitigation bank credits offset all of the potential adverse impacts the proposed project would have on marine productivity in the vicinity. Factor (e) is whether the regulated activity will be of a temporary or permanent nature. The activities are of a permanent nature. The mitigation is also permanent. Factor (f) is whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources. The Project will have no effect on historical and archaeological resources. Factor (g) is the current condition and relative value of functions being performed by areas affected by the proposed regulated activity. The relatively small loss of functional value would be offset by the proposed mitigation. Considering and balancing these seven factors, the Project would not be contrary to the public interest.
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 approving the issuance of Environmental Resource Permit No. IND-109-143282-1 to 1044PVB, LLC, with the conditions set forth in the Technical Staff Report dated April 11, 2016. DONE AND ENTERED this 16th day of June, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2016. COPIES FURNISHED: Karen C. Ferguson, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 (eServed) Jane West, Esquire Josh Smith, Esquire Jane West Law, P.L. 6277 A1A South, Suite 101 St. Augustine, Florida 32080 (eServed) Eric Olsen, Esquire Amelia A. Savage, Esquire Hopping, Green and Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Ann B. Shortelle, Ph.D., Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 (eServed)
The Issue The issue is whether an Environmental Resource Permit should be issued to KGB Lake Howell, LLC, authorizing the construction of a surface water management system to serve an apartment complex known as the Estates at Lake Howell in the City of Casselberry, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this proceeding, Respondent, St. Johns River Water Management District (District), proposes to issue an Environmental Resource Permit to Respondent, KGB Lake Howell, LLC (Applicant), authorizing the construction of a stormwater management system to serve a 240-unit apartment complex known as the Estates of Lake Howell. The project will be located on an undeveloped tract of land in the City of Casselberry (City), Seminole County, Florida, just north of the Orange County line. It will include ten three-story buildings, parking, clubhouse/ administration building, amenity complex, and wet detention pond. The project also incorporates a 3.62-acre stormwater pond, now owned and used by Seminole County (County), lying east of Lake Ann Lane across from the project site, which was included in the overall acreage calculations for the purpose of increasing apartment density on the site. The Applicant has authorization from the County to apply for the permit incorporating that tract of land. The pond will continue to function as a stormwater facility for the County and will not accommodate stormwater from the project site. The project site consists of 38.9 acres located on the north side of Howell Branch Road, east of State Road 436 (also known as Semoran Boulevard), and west of Lake Ann Lane in the City. The site is currently undeveloped and includes an abandoned orange grove and upland pine flatwoods community, which make up approximately 14.6 acres, while the remaining 24.3 acres is a mixed forested wetland system. The property is now owned by the Harold Kasik Living Trust (Kasik property), which has a contract for purchase with the Applicant. The Kasik property is in the shape of a rectangle, 648 feet by 2,530 feet, with its long sides running north- south. It is bordered on the north and east by single-family residential and vacant land, to the south by commercial development, and to the west by high-density residential and commercial development. The property has a high elevation of approximately 83 feet on its southeastern corner and falls to the north/northeast, where the edge of the wetland system is at an elevation of 63 or 64 feet. The major development constraint on the site is the large wetland tract on the northern portion of the property. In order to minimize proposed impacts to the wetlands, the Applicant proposed the transfer of the development entitlements from the County land to benefit the Applicant's property. More specifically, the Applicant will acquire the County property, the Applicant will simultaneously grant a perpetual drainage easement over the property to the County, the Applicant will maintain the landscaping of the property in perpetuity, the Applicant will convey around five acres of wetlands on the northern end of the Kasik property to the County in fee simple, and the City will allow the transfer of development rights from the property. The project will adversely impact 0.99 acres of low- quality wetlands, of which 0.72 acres are to be dredged and 0.27 acres are to be filled to provide the fencing around the wet detention facility. To offset this impact, the Applicant proposes to preserve 17.8 acres of forested wetlands, plus 1.2 acres of forested uplands, or a mitigation ratio of 18:1. The District's guidelines for preservation mitigation applicable to this project are 10:1 to 60:1 for wetland impacts and 3:1 to 20:1 for upland impacts; thus, the mitigation plan falls within these guidelines. Under current conditions, stormwater runoff from the project site sheet flows into the on-site wetland and ultimately Lake Howell (the Lake), a Class III water body which meets all applicable water quality standards and is not an Outstanding Florida Water. After development occurs, stormwater from the developed portions of the property will be conveyed to a wet detention pond for required water quality treatment and peak discharge rate attenuation. After treatment in the detention pond, the water will discharge to the on-site wetland, as it does now, and eventually will be conveyed into the Lake. Off-site flows will continue to be conveyed into the on-site wetland. The wet detention pond, which has a minimum depth of twelve feet and a permanent pool of water with a mean depth of two to eight feet, has been designed to accommodate a 25-year, 24-hour storm. Post-development discharge will be less than pre-development, and the outfall structure has been designed to avoid channelization in the wetlands after the point of discharge. Since at least the late 1940's, Petitioner, Shirley Haynes, or her relatives, have owned, or resided on, a multi-acre tract of land just north of the project site at 2764 Lake Howell Lane. She has substantial frontage on the south side of the Lake. The southern portion of her property, which are wetlands, adjoins the northern boundary of the project site. For the past three years, Petitioner, Egerton van den Berg, has resided on a ten-acre tract of land at 1245 Howell Point, which is northeast of the project site. He has approximately 235 feet of frontage on the south side of the Lake. As argued in their Proposed Recommended Order, Petitioners generally contend that the application is "materially deficient" in several respects in violation of Rule 40C-4.101; that the Applicant has failed to satisfy Rule 40C-4.301(1)(c) and (d), which in turn constitutes a failure to meet the requirements of Rule 40C-4.302(1)(a)-(c); that the Applicant failed to satisfy the criteria in Sections 12.2.3(a)-(f), 12.2.1, 12.2.1.1, 12.2.1.3, 12.2.2.3(a)-(e), 12.2.2.4(a) and (b), 12.3.2.2(c), and 12.3.8(a) of the Applicant's Handbook: Management and Storage of Surface Waters (Applicant's Handbook); that the District did not adequately consider the cumulative impacts of the project as required by Section 373.414(8)(a), Florida Statutes; that a low flow analysis of the Lake was not performed, as required by Rule 40C-8.011(5); that the Applicant did not submit detailed mitigation plans as required by Section 12.3.3.2 of the Applicant's Handbook; that the 18:1 ratio for mitigation proposed by the Applicant is inappropriate; and that the District should not approve the density of the apartments established by the City. These concerns, to the extent they have been identified as issues in the parties' Pre-Hearing Stipulation, are addressed in the findings below. Where contentions have been raised by Petitioners, such as the placement of the detention pond over a depressional area, and they have not been argued in the Proposed Recommended Order, they have been deemed to be abandoned. Conditions for issuance of permits Rule 40C-4.301(1)(a)-(k), Florida Administrative Code, specifies eleven substantive requirements for which reasonable assurance must be given in order for a standard permit to be issued. Subsection (3) of the same Rule provides that the standards and criteria contained in the Applicant's Handbook shall determine whether the foregoing reasonable assurances have been given. Additional conditions for the issuance of a permit are found in Rule 40C-4.302(1) when the project, or any part of it, is located in, on, or over wetlands or other surface waters. Therefore, because a part of the Applicant's system will be located in wetlands, the Applicant must also give reasonable assurance that the project will not be contrary to the public interest, and that it will not cause unacceptable cumulative impacts upon the wetlands or surface waters. a. Rule 40C-4.301 Paragraphs (a)-(c) of the Rule require that an applicant provide reasonable assurance that the project will not cause adverse water quantity impacts to receiving waters and adjacent lands, adverse flooding to on-site or off-site property, or adverse impacts to existing surface water storage and conveyance capabilities. If a system meets the requirements of Section 10.2.1(a) through (d) of the Applicant's Handbook, there is a presumption that the system complies with the requirements of Paragraphs (a) through (c). This presumption has been met since the evidence supports a finding that the post- development peak rate of discharge will be lower than the pre- development peak rate of discharge for a 24-hour, 25-year storm event. Therefore, the Applicant's system meets the requirements of these Paragraphs. Paragraph (d) of the Rule requires that an applicant give reasonable assurance that the project "will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." To satisfy this requirement, an applicant must also demonstrate compliance with the two-prong test in Sections 12.2.2 and 12.2.2.4 of the Applicant's Handbook. Section 12.2.2 requires that an applicant provide reasonable assurance that a regulated activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, and habitat of fish, wildlife, and listed species. In its proposal, the Applicant proposes to fill a total of 0.99 acres of wetlands. Since these impacts will eliminate the ability of the filled part of the on-site wetland to provide functions to fish and wildlife, the filling will cause adverse impacts. Under these circumstances, Section 12.2.1.1 requires that the Applicant either implement practicable design modifications to reduce or eliminate these adverse impacts or meet one of the exceptions under Section 12.2.1.2. Under Section 12.2.1.1, a proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered practicable. The Applicant’s design for the proposed project went through a number of iterations prior to submittal to the District to reduce adverse impacts to the wetlands. During the permitting process, the District requested that the Applicant consider a number of other suggestions to reduce or eliminate the adverse impacts to wetlands such as adding a fourth floor to the apartment buildings to eliminate the need for one apartment building, building a parking garage for the tenants, and eliminating the tennis and volleyball courts. Because the Applicant provided detailed reasons why none of those suggestions were practicable, it was not required to implement any of those design modifications. In addition, the Applicant’s decision not to include a littoral zone around the stormwater pond did not increase the amount of wetland impacts as that engineering decision resulted in a stormwater pond that was simply deeper and not wider. Therefore, the Applicant has met the requirement to reduce or eliminate adverse wetland impacts. Section 12.2.1.1 only requires an elimination and reduction analysis when: (1) a proposed system will result in adverse impacts to wetland functions and other surface water functions so that it does not meet the requirements of Sections 12.2.2 through 12.2.3.7, or (2) neither one of the two exceptions within Section 12.2.1.2 applies. In determining whether one of the two exceptions in Section 12.2.1.2 applies, the District must evaluate the long- term ecological value of the mitigation proposed by the Applicant. If the mitigation is not adequate to offset the adverse impacts of the proposed system, then it is unlikely either exception in Section 12.2.1.2 will apply. As noted above, the Applicant’s proposed dredging and filling of the southern edge of the wetlands on the project site will eliminate the ability of that wetland area to provide functions to fish and wildlife. However, the Applicant’s mitigation plan of placing 17.8 acres of wetlands and 1.2 acres of uplands under a conservation easement to preserve that property in its natural state in perpetuity will fully replace the types of functions that the part of the wetlands proposed to be impacted provides to fish and wildlife. The mitigation plan will also offset the adverse impacts that this project will have on the value and functions provided to fish and wildlife by the impacted part of the wetlands. In this case, the first exception under Section 12.2.1.2(a) applies as it meets that Section's two requirements: the ecological value of the functions provided by the area of wetland to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value than the area or wetland to be adversely affected. Also, the quality of the wetland to be impacted is low. All of the proposed impacts will occur in the area of the wetland that was historically disturbed and in which nuisance and exotic species are prevalent. Due to nuisance and exotic vegetation, the ecological value provided by that area to wildlife is low. The mitigation for the proposed project will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted because the proposed mitigation will preserve eighteen times more wetlands that are of higher quality and provide greater value than the wetland area to be impacted. The type of wetland to be preserved, a mixed forested wetland containing hardwoods, is rare for the area. Although the mitigation plan will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted, the Applicant did not meet the second exception in the elimination and reduction rule under Section 12.2.1.2(b) because the wetlands to be preserved are not regionally significant. In addition to meeting the elimination and reduction rule through implementation of practicable design modifications, the Applicant also satisfied the same rule by meeting the first exception found in Section 12.2.1.2(a). Thus, the Applicant has satisfied Section 12.2.2, which is the first prong of the test to determine compliance with Paragraph (d). The second prong of the test to determine whether Paragraph (d) of the Rule has been satisfied is found in Section 12.2.2.4. That Section requires that an applicant give reasonable assurance that the activity will not change the hydroperiod of a wetland so as to affect wetland functions. For the following reasons, that prong of the test has been satisfied. Since the wetlands are primarily groundwater-influenced, the construction of the stormwater pond between the project and the wetlands will not adversely affect the wetlands. As the soils surrounding the pond are very porous with a high infiltration and percolation rate, water from the stormwater pond will still reach the wetlands through lateral seepage. Further, the Applicant will install an energy dissipating device on the outfall spout at the point of discharge so that water will be spread out from the stormwater pond as it discharges into the receiving wetlands. As noted earlier, this will prevent an adverse channelization effect. Finally, stormwater runoff from the surrounding basins that currently discharge into the wetlands will not be affected by the construction of the stormwater system. That runoff will continue to flow into the wetlands on the project site. Because the Applicant has satisfied Sections 12.2.2 and 12.2.2.4, Paragraph (d) of the Rule has been met. Paragraph (e) of the Rule generally requires that an applicant provide reasonable assurance that a project will not adversely affect the quality of receiving waters. Here, the Applicant has provided such assurance. This is because the system has been designed in accordance with all relevant District criteria. Also, the Applicant has proposed to revise Permit Condition 26 as follows: Condition 26. This permit authorizes construction and operation of a surface water management system as shown on the plans received by the District on June 14, 2001, and as amended by plan sheet C4 (Sheet 07 of 207) received by the District on January 23, 2002. In view of this revision, the Applicant's wet detention system complies with all of the design criteria contained in Rule 40C-42.026(4). Under Rule 40C-42.023(2)(a), compliance with the design criteria contained in Rule 40C-42.026 creates a presumption that state water quality standards, including those for Outstanding Florida Waters, will be met. This presumption has not been rebutted; therefore, the requirements of Paragraph (e) of the Rule have been satisfied. Further, Sections 12.2.4.1 and 12.2.4.2 state, in part, that reasonable assurance regarding water quality must be provided both for the short term and the long term, addressing the proposed construction, alteration, operation, maintenance, removal, and abandonment of the system. The Applicant has provided reasonable assurance that this requirement is met through the design of its surface water management system, its long-term maintenance plan for the system, and the long and short-term erosion and turbidity control measures it proposes. If issued, the permit will require that the surface water management system be constructed and operated in accordance with the plans approved by the District. The permit will also require that the proposed erosion and turbidity control measures be implemented. Section 12.2.4.5 does not apply because there are no exceedances of any water quality standards at the proposed receiving water. Also, Sections 12.2.4.3 and 12.2.4.4 do not apply because the Applicant has not proposed any docking facilities or temporary mixing zones. Paragraph (f) of the Rule requires that an applicant not cause adverse secondary impacts to the water resources. Compliance with this requirement is determined by applying the four-part test in Section 12.2.7(a) through (d). As to Section 12.2.7(a), there are no secondary impacts from construction, alteration, and intended or reasonably expected uses of the proposed system that will cause water quality violations or adverse impacts to the wetland functions. The Applicant chose not to provide buffers abutting the wetlands but rather chose measures other than buffers to meet this requirement. The Applicant has provided reasonable assurance that secondary impacts will not occur by placing the stormwater pond between the planned project and the wetlands, so that the pond itself will serve as a buffer by shielding the wetland from the lighting and noise of the project, and by acting as a barrier to keep domestic animals out of the wetlands. In addition, the Applicant increased the amount of property to be preserved as mitigation by adding 2.97 acres of wetlands and 1.2 acres of uplands to the mitigation plan to mitigate for any remaining secondary impacts. Accordingly, the first part of the secondary impacts test in Section 12.2.7(a) is satisfied. As to Section 12.2.7(b), because there is no evidence that any aquatic or wetland-dependent listed animal species use uplands for existing nesting or denning adjacent to the project, the second part of the test has been met. No adverse secondary impacts will occur under the third part of the test in Section 12.2.7(c) because the proposed project will not cause impacts to significant historical or archaeological resources. Finally, adverse secondary impacts as proscribed by Section 12.2.7(d) will not occur because no evidence was presented that there would be additional phases or expansion of the proposed system or that there are any onsite or offsite activities that are closely or causally linked to the proposed system. Therefore, the proposed project satisfies Paragraph (f) of the Rule. Paragraph (g) of the Rule requires that an applicant provide reasonable assurance that a project will not adversely impact the maintenance of surface or ground water levels or surface water flows established in Chapter 40C-8. Minimum (but not maximum) surface water levels have been established for the Lake pursuant to Chapter 40C-8 for the basin in which the project is located. The project will not cause a decrease of water to, or cause a new withdrawal of water from, the Lake. Therefore, the project satisfies this requirement. Finally, Petitioners have acknowledged in their Proposed Recommended Order that the Applicant has given reasonable assurance that the requirements of Paragraphs (h), (i), (j), and (k) have been met. The parties have also stipulated that the receiving water (Lake Howell) meets all Class III water quality standards. Therefore, the project satisfies the requirements of Subsection 40C-4.301(2). Rule 40C-4.302 - Public Interest Test Under Rule 40C-4.302(1)(a)1.-7., an applicant must provide reasonable assurance that the parts of its surface water management system located in, on, or over wetlands are not contrary to the public interest. Similar requirements are found in Section 12.2.3. The Applicant has provided reasonable assurance that the parts of the project that are located in, on, or over wetlands (mainly the detention pond and fill) are not contrary to the public interest, because the evidence showed that all seven of the public interest factors to be balanced are neutral. Because the proposed permanent mitigation will offset the project’s adverse impacts to wetlands, no adverse effects to the conservation of fish and wildlife due to the project’s permanent nature will occur. The evidence also showed that best management practices and erosion control measures will ensure that the project will not result in harmful erosion or shoaling. Further, it was demonstrated that the project will not adversely affect the flow of water, navigation, significant historical or archaeological resources, recreational or fishing values, marine productivity, or the public health, safety, welfare or property of others. Finally, the evidence showed that the project’s design, including permanent mitigation, will maintain the current condition and relative value of functions performed by parts of the wetland proposed to be impacted. Therefore, the project meets the public interest criteria found in Rule 40C-4.302(1)(a). Rule 40C-4.302(1)(b) - Cumulative Impacts Rule 40C-4.302(1)(b) and Section 12.2.8 require that an applicant demonstrate that its project will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. Under this requirement, if an applicant proposes to mitigate the adverse impacts to wetlands within the same drainage basin as the impacts, and if the mitigation fully offsets these impacts, the District will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. The Applicant has chosen to mitigate for the impacts to 0.99 acres of wetlands by preserving 17.8 acres of wetlands and 1.2 acres of uplands on-site. Since this mitigation will occur in the same drainage basin as the impacts and the mitigation fully offsets those impacts, the Applicant satisfies the requirements of the Rule. Rule 40C-4.302 - Other Requirements The parties have stipulated that the requirements of Paragraphs (c) and (d) of Rule 40C-4.302(1) do not apply. There is no evidence that the Applicant has violated any District rules or that it has been the subject of prior disciplinary action. Therefore, the requirements of Subsection (2) of the Rule have been met. Miscellaneous Matters County Pond Site The Seminole County pond site located on the east side of Lake Ann Lane and across the street from the project is not a jurisdictional wetland and does not have any wetland indicators. It is classified as an upland cut surface water. The Applicant is not proposing to impact any wetlands at the pond site, and the site is not part of the proposed mitigation plan for the project. The permit in issue here is not dependent on the pond site, and nothing in the application ties the project with that site. Indeed, the transfer of density rights from the County property is not relevant to the District permitting criteria. Review of Application When the decision to issue the permit was made, the District had received all necessary information from the Applicant to make a determination that the project met the District's permitting criteria. While certain information may have been omitted from the original application, these items were either immaterial or were not essential to the permitting decision. The application complies with all District permitting criteria. Contrary to Petitioners' contention, the Applicant does not have to be the contract purchaser for property in order to submit an application for that property. Rather, the District may review a permit application upon receipt of information that the applicant has received authorization from the current owners of the property to apply for a permit. In this case, the Applicant has the permission of the current owners (the Harold Kasik Living Trust).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the requested permit as described above. DONE AND ENTERED this 29th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2002. COPIES FURNISHED: Kirby B. Green, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Shirley B. Haynes 2764 Lake Howell Road Winter Park, Florida 32792-5725 Egerton K. van den Berg 1245 Howell Point Winter Park, Florida 32792-5706 Charles A. Lobdell, III, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Meredith A. Harper, Esquire Shutts & Bowen Post Office Box 4956 Orlando, Florida 32802-4956
The Issue The issue is whether Respondent Crestwood Lakes Associates provided reasonable assurance that a modification to a conceptual surface water management permit complies with the permit criteria contained in statutes and rules.
Findings Of Fact Background This case involves a 900-acre parcel in the Loxahatchee Slough, west of the Florida Turnpike in Palm Beach County (County). Although the property occupies part of a slough, all of the wetlands in this case are isolated wetlands. Respondent Crestwood Lakes Associates (Applicant) owns the south 503 acres, Petitioner owns the north 287 acres, and the Village of Royal Palm Beach (Village) owns the remaining 115 acres, which abut the southwest boundary of the north parcel. The acreages do not total 900 acres because the numbers are approximate. The 900-acre parcel is generally bounded on the south by Okeechobee Boulevard and the north and east by the M-1 canal. The west boundary of the south part of the parcel adjoins a residential development known as Loxahatchee Groves, and the 115-acre parcel adjoins a County-owned preserve of at least 600 acres. Applicant’s land is undeveloped except for some landclearing. Petitioner’s land is partly developed, mostly in the south next to the boundary with Applicant’s land. The Village's 115 acres are a preserve, divided equally between wetlands and uplands. On February 11, 1988, Respondent South Florida Water Management District (District) issued surface water management (SWM) permit No. 50-00618-S-02 to Royal Palm Homes, Inc. for conceptual approval of a SWM system serving a residential development on the 900-acre parcel (1988 Permit). References to the Original Developer shall include Royal Palm Homes, Inc., its agents, lenders, and assigns, except for Petitioner and Applicant. The permitted development, which was known as the Royal Palm Homes PUD, comprises single-family and multifamily residences, wetland preserve areas, two 18-hole golf courses, and a park area. On August 3, 1994, Applicant filed SWM application number 940803-6 to modify the 1988 Permit to show the change in ownership and obtain conceptual approval of a modification to the permitted SWM system. The application was not complete when the new Environmental Resource Permit (ERP) rules replaced the old Management and Storage of Surface Water (MSSW) permit rules. On May 24, 1996, the District transmitted the staff report, which proposed the issuance of a permit modification. On June 13, 1996, the District approved the issuance of the proposed permit modification. On the same date, Petitioner filed its petition challenging the proposed agency action. Permits The first relevant SWM permit for the 900-acre parcel involved a larger parcel that includes the 900-acre parcel. On September 14, 1978, the District issued a two-page permit authorizing the “construction of a water management system serving 2073 acres of residential lands by waterways discharging into canal C-51.” This 1978 permit, which is identified as number 50-00618-S, contains a special condition calling for a minimum finished floor elevation of 18.0 feet National Geodetic Vertical Datum (NGVD). The next permit is the 1988 Permit, which is a substantial modification to the 1978 permit. The 1988 Permit covers only the previously described 900 acres and, as modified, currently remains in effect. The 1988 Permit requires the preservation of two large wetlands in the north parcel, just north of the 115-acre preserve; one wetland is about 30 acres and the other is about ten acres. The 1988 Permit requires the preservation of no other wetlands in the north parcel, but, in addition to the wetlands in the 115-acre preserve, the 1988 Permit requires the preservation of several much smaller wetlands in the south parcel. The staff report for the 1988 Permit divides into three basins the drainage area for the 900-acre parcel: a north basin of 98.9 acres, a central basin of 525.7 acres, and a south basin of 270.8 acres. The staff report states that basin runoff will pass through a system of inlets and culverts into a series of interconnected lakes, from which, through control structures, the runoff will pass into the M-1 canal and eventually into the C-51 canal. The staff report notes that the control elevations will be 17.25 feet NGVD for the north basin, 17.55 feet NGVD for the central basin, and 17.75 feet NGVD for the south basin. Under the discussion of environmental impacts, the staff report observes that the 1978 permit proposed for protection only 30 acres of wetlands among the 281 acres of isolated wetlands on the site. The staff report notes that “extensive” melaleuca invasion has taken place since the 1978 permit and only 160 acres of wetlands remain in “relatively good” condition, with much of this subject to melaleuca encroachment. Due to the “extensive seed source” and “seasonal drying of the wetlands,” the staff report predicts eventual melaleuca dominance of the “entire site.” The staff report asserts that the proposed development plan includes the protection of about 100 acres of the “best quality wetlands,” plus eight acres of wetlands created in conjunction with the golf courses and 15 acres of wetlands created as littoral zones in conjunction with the lakes to be constructed. The staff report calls a program “to eradicate all melaleuca from the site” “[t]he major environmental feature” of the proposed development plan. But this major environmental feature of the 1988 Permit is presently in jeopardy. One major component of the present case is that, following the conveyances of the three parcels by the Original Developer, the District has evidently concluded that no one is responsible to perform certain obligations under the 1988 Permit and no remedies are available for the nonperformance of these obligations. It appears that these conclusions are largely driven by the vagueness of the plan to eradicate the melaleuca. This plan is called the "Melaleuca Eradication Plan." The Melaleuca Eradication Plan is incorporated into the 1988 Permit. The Melaleuca Eradication Plan, which is dated December 11, 1987, recounts that the Original Developer and regulatory bodies agreed that the melaleuca should be “eradicated and a program for this should be developed and included as a part of the permit application.” The plan states that the eradication plan will cover the entire 900- acre site with the Original Developer performing the “initial . . . program” on the entire site, including the 115-acre preserve to be deeded to the Village. The Melaleuca Eradication Plan calls for the Original Developer to create a bonded authority to conduct the “ten-year melaleuca eradication program.” The program is phased to coincide with the projected 10-year buildout of the 3000-unit parcel. The Melaleuca Eradication Plan describes in detail the three phases of the program and exactly how the Original Developer will proceed to remove the melaleuca and restore wetlands by planting native wetland species in disturbed areas. The plan promises a yearly inspection followed by hand-removal of any seedlings discovered on the site. This last phase will terminate ten years after commencement of the first phase. A “Wetlands Monitoring/Maintenance Program” is also incorporated into the 1988 Permit. The Wetlands Monitoring/Maintenance Program, which is dated December 8, 1987, states that Dr. Dwight Goforth performed a wetlands survey of the 900-acre site in 1985 and divided wetlands into three categories based on their quality. The Wetlands Monitoring/Maintenance promises the preservation of 112.71 acres of wetlands comprising 98.81 acres of “large wetlands totally preserved” and nine wetlands totaling 13.9 acres that will be “partially preserved.” Also, the program will create golf course wetlands of 6.93 acres and littoral-zone wetlands around the lakes of 15 acres. Thus, the program summarizes, the “total wetland acreage preserved, enhanced and created will [be] 134.64 acres.” The Wetlands Monitoring/Maintenance Program describes a three-year monitoring program using transects to assist in the vegetative mapping of the site. The program also promises semiannual observations of birds, small rodents, and larger mammals using the wetlands and adjacent preserved uplands, as well as semiannual sampling for fish, macroinvertebrates, and amphibians. The Wetlands Monitoring/Maintenance Program outlines a plan to remove melaleuca and control algae buildup in the lakes. The program promises to contain algae through the use of “biological controls” and, when needed, hand-raking. The program also assures that the Original Developer will use a “conservative fertilization program” for the golf course and landscaped areas to reduce eutrophication in the created lakes. On February 18, 1988, the District issued its conceptual approval of the 1988 Permit. Among the special conditions of the 1988 Permit are Special Condition 15, which requires wetland monitoring and maintenance in accordance with the Wetlands Monitoring/Maintenance Program, and Special Condition 16, which requires melaleuca removal in accordance with the Melaleuca Eradication Plan. Also, Special Condition 17 requires low berms around protected or created wetlands, including littoral zones, to protect against sheetflow runoff from the golf course or other areas of intense development. The references in the preceding paragraphs to the responsibilities of the "Original Developer" imply greater clarity than is present in the Melaleuca Eradication Plan or Wetlands Monitoring/Maintenance Program. The passive voice predominates in both these documents, so it is sometimes difficult to determine on whom a particular responsibility falls. The Melaleuca Eradication Plan states clearly that "[the Original Developer] will conduct the initial melaleuca eradication on the entire site including the dedicated park area [i.e., the 115 acres]." The next sentence of the plan contemplates the conveyance of the 115 acres to the County. But, after these clear provisions, the Melaleuca Eradication Plan lapses into the passive voice almost invariably. The next two sentences read, "A bonded authority will be created to conduct the ten-year melaleuca eradication program" and "The eradication program will be carried out through a bonded agreement with the [Original] Developer to remove the melaleuca . . .." Alluding to the several phases of melaleuca eradication, the plan states only "[t]he eradication program will be completed in stages " Only two other sentences establishing responsibility for melaleuca eradication identify the responsible party. The end of the plan states that the "bonded authority responsible for initial eradication clearance will likewise provide a yearly inspection." One of the final sentences of the plan adds: "the bonding authority's crew will hand remove entire seedlings found on site." The Wetlands Monitoring/Maintenance Program is similar except that it does not once name the entity responsible for the monitoring and maintenance duties or hiring the firm or individual to conduct the actual work. The two special conditions incorporating these two documents likewise are in the passive voice, implying only that the responsibility belongs to the Original Developer. Given the vagueness of the melaleuca-eradication and wetlands-maintenance documents, it is not surprising that they fail entirely to address the issue whether these responsibilities run with the land, remain the responsibility of the Original Developer, or, for the eradication of melaleuca, remain the duty of the "bonded authority," if the Original Developer ever created such an entity, which appears highly doubtful. The documents likewise do not disclose the penalties for noncompliance. On June 16, 1988, the District issued a modification to the 1988 Permit for the construction and operation of a 110.9-acre residential development in Phase I, which occupies the central basin. On October 1, 1988, the United States Army Corps of Engineers (Army Corps) issued the Original Developer a permit to destroy 164 acres of wetlands on the 900-acre parcel. Special conditions of the 1988 Army Corps permit require the preservation of "115 acres of high quality wetlands," the creation of 18 acres of wetlands and 15 acres of littoral shelf, and the implementation of a "Melaleuca Eradication Program," which is the same program as is incorporated in the 1988 Permit. The 1988 Army Corps permit contains an attachment dated October 24, 1987. This attachment identifies the protected wetlands as the two large wetlands in the north parcel totaling about 40 acres, 58 acres in the 115-acre preserve, and 53.5 acres in the south parcel. The 1988 Army Corps permit protects several wetlands in the south parcel, including wetland numbers 14 (3.04 acres), 16 (1.6 acres), 23 (0.53 acres), 30 (2.6 acres), 44 (0.8 acres), 29 (1.08 acres), and 46 (3.0 acres). These wetlands, which total 12.65 acres, are seven of the nine wetlands partially preserved in the 1988 Permit, although some of the acreages vary from those preserved in the 1988 Permit. Unlike the District's permits (except for the subject proposed permit modification), the 1988 Army Corps permit addresses conveyances by the developer. The 1988 Army Corps permit states: "If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization." Below the signature line of the 1988 Army Corps permit is language stating: When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below. On March 1, 1989, the Original Developer conveyed the 115-acre preserve to the Village, which later leased the preserve to the County. The Original Developer had not eradicated the melaleuca at the time of the conveyance, nor has anyone since done so. On August 17, 1990, water elevations in the wetlands in Phase I reached 19.4 feet NGVD, washing out construction pads, roads, and in-ground utilities. On September 7, 1990, the District issued a stop-work request because the SWM system was not working as required. On September 28, 1990, the District approved interim measures to preserve the wetland hydroperiod and allow for wetland overflow. These measures include berming the residential areas in Phase I/Plat I adjacent to wetlands. On June 13, 1991, the District approved additional modifications to the 1988 Permit and the construction and operations permit for Phase I and issued a conceptual approval for works in the north and central basins. The revisions to the conceptual approval include adding two control structures to the north wetland that connect to the water management system in the north basin and adding a berm around the smaller of the two preserved wetlands in the north parcel. The construction approval was for a perimeter berm along the south wetland and park areas. On June 24, 1992, the District issued a staff report recommending issuance of another modification of the 1988 Permit for the conceptual approval of a SWM system to serve the 900-acre parcel and approval of construction and operation of a SWM system to isolate and control the existing onsite wetlands and revise the control structure for the central basin. The staff report explains that this modification proposes berming the wetlands to the 100-year, three-day peak elevation. The staff report notes that the wetlands basin consists of 295.18 acres of wetlands, including 155.85 acres of “wetlands/uplands.” The staff report notes that the north basin contains 107.41 acres of “good quality wet prairie wetlands” with “minimal” melaleuca encroachment. The staff report restates that the purpose of the modification is to berm all of the wetlands and uplands not planned for development. Special Condition 19 requires the Original Developer to dedicate as conservation and common areas in deed restrictions the “wetland preservation/mitigation areas, upland buffer zones, and/or upland preservation areas," so that these areas are the “perpetual responsibility” of a named property owners’ association. Special Condition 22 states that “a wetland monitoring and maintenance program” and “a melaleuca eradication program” “shall be implemented,” but the condition does not expressly state by whom. Special Condition 22 requires that the work implementing these programs conform to these “approved environmental programs as outlined in the [1988 Permit].” Special Condition 25 provides that, on submittal of an application for construction approval in the south basin (Phase II), the "permittee shall submit a detailed wetland construction mitigation, monitoring and maintenance plan.” In evaluating the plan for approval, the District shall apply the “environmental criteria in effect at the time of construction permit application.” Although the approval of the District is not attached to the staff report, the District approved the June 24, 1992, staff report and proposed permit. The 1992 permit modification did not address the issue of who was responsible for melaleuca eradication after the sale of the property. On November 10, 1993, the staff report accompanying another request for a permit modification restates the special conditions of earlier permit modifications. Special Condition 23 restates the requirement that a melaleuca eradication program “shall be implemented,” again not stating by whom. Special Condition 23 now requires the completion of the melaleuca eradication program by February 25, 1994. The omission of a referenced exhibit to the permit from the exhibit filed in this case prevents a determination that this is the same as the Melaleuca Eradication Plan incorporated in the 1988 Permit and restated in the 1992 modification, although it probably is. In any event, Special Condition 23 concludes in another sentence lacking a stated or implied subject: “Maintenance of the preserved wetlands and berm planting areas shall be conducted in perpetuity to ensure that the conservation areas are maintained free from exotic vegetation (Brazilian pepper, Australian pine and melaleuca) . . ..” Although the record does not contain the written approval of the District to the staff report, the District approved the staff report dated November 10, 1993. On November 12, 1993, the Original Developer conveyed by special warranty deed the north to Petitioner. The deed is subject only to "easements, declarations, restrictions and reservations of record . . .." The record does not provide recording information for the deed. The Original Developer probably conveyed the south parcel to Applicant in the same fashion and at the same approximate time. Almost five months later, on March 29, 1994, the Army Corps issued another permit for the 900-acre parcel. Although the Original Developer had conveyed at least the north parcel, the Army Corps issued the 1994 permit to the Original Developer. The 1994 Army Corps permit authorizes the destruction of 158 acres. The general conditions governing transfers are the same as those in the 1988 Army Corps permit. The special conditions of the 1994 Army Corps permit require the permittee to preserve and enhance only 110 acres of high quality wetlands, instead of preserving 115 acres of such wetlands, as was required in the 1988 Army Corps permit. The 1994 Army Corps permit drops the requirement of creating eight acres of wetlands and 15 acres of littoral zone, as was required in the 1988 Army Corps permit, but requires the preservation of what appears to be the 39.5-acre preserve that is proposed by Applicant in the subject permit modification, as described below. Special Condition 3 of the 1994 Army Corps permit adds that all preserved areas "will be maintained in perpetuity free of Melaleuca. The permittee agrees to develop a bonded Melaleuca eradication program for the entire 906 acres. Copies of the bonded agreement will be provided to this office for approval before development can commence." The next permit activity affecting the 900-acre parcel is the subject application filed by Applicant on August 3, 1994, for its 503-acre parcel. On May 24, 1996, the District issued a staff report for conceptual approval of a SWM system proposed by Applicant for its 503-acre parcel. On June 13, 1996, the District issued an addendum to the staff report that contains another special condition that is not especially relevant to this case. In the background section, the staff report mentions the flooding of Phase I of the north parcel and states that the District had “assumed the adjacent wetlands would flow away from the development.” The staff report outlines the modifications implemented to eliminate the flooding; these modifications include connecting the M-1 canal, through inlets, with several wetlands located in the north and central basins. According to the staff report, Petitioner’s north parcel, which totals 287.34 acres, includes the Phase I/Plat 1 area, north basin, and part of central basin south of Phase I. Describing Applicant’s proposal, the staff report states that a preserve of 39.5 acres will be located in the northwest corner of the south parcel, adjoining the east boundary of the 115-acre parcel. The staff report states that the 39.5-acre preserve will sheetflow through cuts in the berm to wetlands in the 115-acre preserve. The 115-acre preserve is connected to the SWM system permitted on November 10, 1993, to eliminate flooding from these wetlands, whose control elevation is 19 feet NGVD. The staff report describes the south parcel as “dominated by flatwood habitat,” within which are stands of Australian pine and other exotic plant species that have recently been spreading across the site. The onsite wetlands are 4.93 acres of wet prairies, 18.4 acres of pond cypress strands, 1.56 acres of isolated marsh, 3.5 acres of cypress mixed with pine flatwood, and 163.91 acres of melaleuca. The staff report finds that only the 4.93 acres of wet prairies and 18.4 acres of cypress are in good condition, but melaleuca has become established in many of the wet prairies. The 1.56 acres of freshwater marshes and 163.91 acres of melaleuca are in poor condition. The 3.5 acres of cypress mixed with pine flatwoods are in fair condition. As for listed species, the staff report mentions only the possibility that herons might forage onsite during periods of standing water. Summarizing the impact of the proposed project on wetlands preservation, the staff report endorses the hydrologic reconnection of the 39.5-acre wetland/upland site with the 115-acre wetland. The staff report notes that water levels in the 115-acre preserve, which has been bermed to 21 feet NGVD, have stabilized at 19 feet NGVD. The staff report asserts that the “proposed wetland impacts (183.54 acres) were previously permitted under the conceptual permit application” for the original 1988 Permit. The staff report adds that this modification is to “change a portion of the original mitigation requirements . . . and includes impacts to a 6.78 acre wetland area that was previously permitted to be preserved.” But the staff report does not recommend the preservation of this wetland “[d]ue to the reduced hydrology and proximity to the proposed upland development” and the mitigation and compensation provided by the 39.5-acre preservation area. The staff report states that 8.76 acres of the 39.5- acre preserve are wetlands, and the remainder are uplands. As for the 8.76 acres of wetlands, the staff report lists 0.67 acres of mixed cypress and pine flatwoods, 4.93 acres of wet prairies, and 3.16 acres of cypress. Applicant would also restore 4.95 acres of pine flatwoods. As for the 183.54 acres of wetlands to be destroyed, the staff report lists 2.83 acres of mixed cypress and pine flatwoods in fair condition, 15.24 acres of cypress in fair condition, 1.56 acres of freshwater marshes in poor condition, and 163.91 acres of melaleuca in poor condition. Addressing the mitigation and monitoring elements of the current proposal, the staff report states that the modification would eliminate the creation of 15 acres of littoral wetlands around SWM lakes and 7.99 acres of marshes in golf courses in return for the creation of the 39.5-acre preservation area. The staff report assures that Applicant will perpetually manage and maintain the 115-acre preserve. Conceding that the 1988 Permit also required long-term maintenance of the 115-acre parcel, the staff report notes that the initial eradication effort was never completed. The staff report mentions an “access agreement” giving Applicant the authority to enter the 115-acre preserve for mitigation and monitoring, but “anticipat[es]” that Applicant will submit an application for another permit modification, on behalf of the two governmental entities, so that Applicant can “assume future maintenance responsibilities for this area.” As is clarified by the maintenance and monitoring plan, which is part of the proposed permit, Applicant's expectation is that the County and Village, not Applicant, will assume future maintenance responsibilities for the 115-acre preserve. The staff report concludes that the District should issue the permit subject to various conditions. Special Condition 1 is that the minimum building floor elevation is 20 feet NGVD. Special Condition 16 requires the implementation of a wetland mitigation program and requires Applicant to create 4.95 acres of marsh; restore 3.16 acres of cypress, 4.93 acres of marsh, and 0.67 acres of mixed forest; and protect 25.79 acres of uplands. Special Condition 17 sets performance criteria for the mitigation areas in terms of percentage and length of survival of vegetation. Special Condition 17 supplies completion dates for monitoring reports. Special Condition 21 addresses listed species. Noting that listed species have been seen onsite or the site contains suitable habitat for such species, Special Condition 21 requires Applicant to coordinate with the Florida Game and Fresh Water Fish Commission or the U. S. Fish and Wildlife Service for guidance, recommendations, or permits to avoid impacts to such species. The monitoring and maintenance plan does not address direct and contingent liabilities for maintenance and generally is a poor candidate for enforcement. In addition to the vagueness of the passive voice, the plan is, at times, simply unreadable, as, for example, when it concludes boldly, but enigmatically: The site as a whole is evolving hydrologic trends which permits successional seres development toward communities with shorter hydroperiods and ultimately, toward more upland transitional and/or exotic species dominance of historically wetland habitats. Long-term prospectives infer that successional deflection has become a severe detriment for natural environmental control to alter the present scenario. Active management coupled with graduated balanced in hydrologic restoration and created habitat elements will become the processes engineered to obtain an infusion of probabilities fashioned to inscribe a regenerative adaptation to the present site condition while fostering in situ processes, to optimize derived functions, for the maintenance of both habitat and wildlife over the long-term existence of the Preserve. (Sic.) Water Quality Impacts Petitioner does not contend in its proposed recommended order that the proposed project fails to meet applicable requirements regarding water quality. Applicant has provided reasonable assurance that the proposed permit modification would not violate State water quality standards. Flooding Petitioner contends in its proposed recommended order that the proposed permit modification would not meet applicable requirements regarding water quantity and flooding. However, Applicant has provided reasonable assurance that the project would not violate these requirements. There are several aspects to a SWM system. Undeveloped land stores and conveys rainfall through soil and surface storage. An artificial SWM system alters the undeveloped land’s storage capacity by the addition of a storage and drainage system, such as, in this case, conveying water through the soil into storm drains and then to lakes to store surface runoff prior to release, through an outfall structure, into a receiving body of water--in this case, the M-1 canal. The SWM system hastens the conveyance of stormwater runoff offsite. The control elevation of a SWM system is the height at which water in the lakes will flow through the outfall structure into the receiving body of water. Except during the dry season, the control elevation tends to establish not only the water level of the SWM lakes, but also of the nearby water table. The hastening of drainage offsite with the establishment of control elevations produce the drawdown effect of SWM systems. As to flooding, the basic underlying dispute between Petitioner and Respondents is whether to use the pre- or post- development depth to water table. In determining whether an applicant has provided reasonable assurance as to the impact of a proposed development on wetlands, one would project the effect of any post-development drawdown on the wetlands themselves and their functions and inhabitants. It would be illogical not to do the same in determining whether an applicant has provided reasonable assurance as to the impact of a proposed development on flooding. Pre-development, the average depth to water table on Applicant’s property is as little as two feet. Post- development, the average depth to water table on Applicant’s property will be five feet, which is the difference between the control elevation of 14 feet NGVD and ground elevation of 19 feet NGVD. Petitioner’s evidence concerning flooding is flawed because its expert witness based his calculations on an average depth to water table of two feet on Applicant’s property. He did not adjust for the considerable drawdown effect of the SWM system. The District table allows for no more than four feet between the water table and ground, so there is an added margin of safety in the ensuing flooding calculations. Another important factor in the flooding calculations is the soil type in terms of permeability. The District properly characterized the prevailing soils as flatwoods, and the soils onsite are in the category of “good drainage.” Applicant’s suggestion that flooding calculations use the post-development soils is rejected. Post-development depths to water table are used because they can be calculated to predict post-development conditions accurately. Applicant produced no proof that it would replace such massive amounts of soil from the site with more permeable soils so as to justify reclassifying the soil type. The District's flooding calculations probably overstate the risk of flooding in the three-day, 100-year design storm because they ignore lake bank storage, which is the additional amount of water that a lake can store in its sloped banks above the typical water elevation. The District could have relied on the effect of lake bank storage for additional assurance that the proposed project will not result in flooding. The proposed project contains a large number of long, narrow lakes, which will thus have a relatively high percentage of lake banks to lake area. Additionally, the District has raised the minimum floor elevation at this site by two feet over 18 years. Whatever other effects may follow from this trend, the higher floor elevation offers additional protection to onsite improvements. The flooding of Petitioner’s property seven years ago understandably is a matter of concern to Petitioner. Applicant proposes to change the configuration of drainage basins, but the District has adequately addressed the drainage issue, and this is not the first time in the 20-year permitting history of this property that the District has approved a reconfiguration of basins. Also, in the 1988 Permit, the District incorrectly projected the direction of runoff under certain conditions. However, the flooding was partly due to inadequate road- drainage facilities. Following the flooding, the Original Developer enlarged these features and bermed the flooding wetlands, so as to eliminate the flooding of developed areas due to design storm events. On balance, Applicant has proved that the proposed permit modification would not adversely affect flooding or water quantity. Environmental Impacts A. Wetlands Petitioner contends in its proposed recommended order that the proposed permit modification would not meet applicable requirements regarding environmental impacts to wetlands. Applicant has failed to provide reasonable assurance that the proposed work would not violate these requirements. There are two major deficiencies in the District's analysis of wetland impacts and mitigation or compensation. First, the proposed permit modification includes mitigation or compensation in the form of melaleuca removal. But prior permits have already required the same work, no one has ever done the work, and the District does not know if these permit requirements are still enforceable. Second, the proposed permit modification ignores 13.9 acres of preserved wetlands in the 1988 Permit, allowing their destruction without mitigation or compensation. The permitting process requires the District to balance the impacts of development and mitigation or compensation on the natural resources under the District's jurisdiction. Balancing these impacts in issuing the 1988 Permit, the District required the complete eradication of melaleuca in return for permitting the residential, institutional, and recreational development proposed by the Original Developer. District staff, not the Original Developer or Petitioner, called the Melaleuca Eradication Plan “the major environmental feature” of the development plan approved by the 1988 Permit. The major environmental feature of the 1988 Permit clearly justified significant development impacts on natural resources. To justify additional development impacts on natural resources, the District now proposes to count again another developer’s promise to eradicate the melaleuca. The District claims that the term of the original melaleuca protection plan was only ten years, not perpetual as is presently proposed. However, the District's claim ignores Special Condition 23 in the 1993 permit modification. This condition set a deadline of February 25, 1994, for the eradication of melaleuca and made perpetual the requirement that one or more of the potentially responsible parties--the Original Developer, Petitioner, Applicant, the bonded authority, the property owners' association, or transferees-- maintain the wetlands free of melaleuca and other exotics. Unfortunately, this “major environmental feature” of the 1988 Permit, as well as subsequent permit modifications, was so poorly drafted as to leave potentially responsible parties unsure of their legal obligations. The District tacitly suggests that it cannot enforce the obligations imposed by the 1988 Permits and later modifications for the eradication of melaleuca. But there is presently no reason for the District to resort again to permitting without first reviewing carefully its enforcement options. The District should first determine whether anyone will voluntarily assume these obligations. As a business consideration, Petitioner may choose to eradicate the melaleuca from the north parcel and 115-acre preserve to prevent Applicant from providing this service and claiming that it should receive compensation credit against additional environmental impacts permitted by a modification of the 1988 Permit. Maybe the County or Village has already budgeted funds for this work. If no party offers to perform the necessary work, the District must next determine its legal rights and the legal obligations of these parties. Depending on the results of this research, the District may need to consider litigation and the cessation of the issuance of construction and operation permits on the 900-acre parcel or either the north or south parcel. At this point, the District should discuss joint litigation or permit revocation with the Army Corps, whose 1994 permit requires the permittee to develop a bonded melaleuca-eradication program and apparently imposes on the permittee the responsibility to maintain all preserved areas free of melaleuca. Only after having exhausted these options may the District legitimately conclude that melaleuca eradication on any part of the 900 acres represents fair compensation for the development impacts on jurisdictional natural resources. The second major problem as to wetlands impacts concerns the calculation of wetlands acreages to be destroyed by the proposed permit. The 1988 Permit expressly incorporates the Wetlands Monitoring/Maintenance Program. This program, as an operative part of the 1988 Permit, represents that the developer will “partially preserve. . .” nine wetlands totaling 13.9 acres. The partial preservation of wetlands does not mean that a five-acre wetland will remain a five-acre wetland, except that its function will be impaired. Partial preservation means that, for instance, two acres of a five- acre wetland will be preserved. It is impossible for the District to have required mitigation to offset the destruction of these 13.9 acres of wetlands because the District denies that the 1988 Permit required the partial preservation of these nine wetlands. As noted below, neither the District nor Applicant can identify all of the wetlands that make up the 13.9 acres. Rather than account for these wetlands that were to have been partially preserved, the District instead contends that this undertaking by the Original Developer was ineffective or nonbinding because it was overriden by contrary statements in the staff report. Not so. The specific provisions delineating the preserved wetlands area in the Wetlands Monitoring/Maintenance Program, which was prepared by the Original Developer, override more general statements contained in the staff report accompanying the permit. There is not necessarily a conflict between the staff report and the Wetlands Monitoring/Maintenance Program. The staff report states that the plan “includes the protection of approximately 100 acres of the best quality wetlands,” together with the creation of eight acres of golf course wetlands and 15 acres of lake littoral zones. The plan “includes” these wetlands among those preserved or created; the word suggests that the list is not exhaustive, but only illustrative. Alternatively, if the list were exhaustive, the preservation of “approximately” 100 acres reasonably encompasses the 112.71 acres of partially or totally preserved wetlands cited in the Wetlands Monitoring/Maintenance Program. More to the point, on October 26, 1987, Donald Wisdom, the engineer handling the 1988 Permit, prepared a memorandum for the file stating that the total acreage of wetlands to be preserved or created was 134.45. This figure represents an insignificant deviation of 0.19 acres from the total listed in the Wetlands Monitoring/Maintenance Program, which was dated six weeks later, on December 8, 1987. In the October 26 memorandum, Mr. Wisdom describes the preserved wetlands as 111.46 acres of A- and B-quality wetlands. This is 1.25 acres less than the acreage in the Wetlands Monitoring/Maintenance Program. These small discrepancies were eliminated by November 18, 1987, when Mr. Wisdom wrote a memorandum noting that the program called for the total preservation of 98.81 acres and partial preservation of 13.9 acres. Adding the created wetlands, the new total for preserved or created wetlands was 134.64 acres. A month later, a District employee wrote a memorandum to the file, expressing his “main concern” that the proposed development would protect only 99 acres of wetlands. It is unclear why the employee mentioned only the 98.81 acres slated for preservation. Perhaps he was confused or mistaken. But the misgivings of a single employee do not constitute the rejection by the District of a developer's proposal to preserve nearly 14 acres of high-quality wetlands. The staff report for the 1988 Permit notes that the 900-acre site contained about 281 acres of wetlands. If the 1988 Permit required the preservation, as an entire wetland or part of a larger wetland, of 112 acres of wetlands, then the 1988 Permit allowed the destruction of 169 acres, which is consistent with the 164 and 158 acres allowed to be destroyed by the 1988 and 1994 Army Corps permits. However, by the 1996 permit modification, the staff report refers, without explanation or justification, to the permitted destruction of 183.54 acres of wetlands--evidently adding the 13.9 acres to the 169 acres previously permitted to be destroyed. Tab 13 of the Wisdom bluebook identifies the nine wetlands constituting the 13.9 acres, which are entirely in Applicant's south parcel. Except for three, all of these wetlands were characterized as A-quality, meaning that they are in good to excellent condition and “have not been stressed significantly from the biological viewpoint.” B-quality wetlands are in disturbed condition and “are in various stages of biological stress caused primarily by a lowered water table and/or melaleuca invasion.” C-quality wetlands are highly disturbed and “are substantially degraded biologically.” The 13.9 acres of wetlands comprise wetland numbers 23 (0.5 acres), 46 (0.4 acres), 44 (0.6 acres), 37 (0.4 acres), 29 (1.1 acres), 20 [sometimes misreported as 21] (3.9 acres), 30 (2.6 acres), 16 (1.5 acres), and 14 (2.9 acres). Wetland numbers 46 and 29 are B-quality, and wetland number 20 is C-quality. The wetlands shown in District Exhibit 4 and Applicant Exhibit 3 inaccurately portray the wetlands constituting the missing 13.9 acres. A internal memorandum to the file notwithstanding, the District predicated the 1988 Permit in part on the preservation of 112.71 acres of functioning wetlands, including the 13.9 acres that the District now disclaims. The mitigation and compensation required of Applicant in the present case ignored the destruction of these wetlands. The District's analysis of mitigation and compensation in this case was fatally flawed by these two deficiencies. But more deficiencies exist in the District's analysis of wetland impacts. The District relied on faulty data in reviewing Applicant's request for a permit modification. Undercounting the extent of wetlands by at least 21 acres and their condition by an indeterminable amount, Applicant presented to the District a materially inaccurate picture of the wetland resources on the south parcel. Despite disclaimers to the contrary, the District relied on this inaccurate data in reviewing Applicant's request for a permit modification. There are possible problems with 39.5-acre preserve offered by Applicant. This parcel contains less than nine acres of wetlands, including two wetlands that Applicant may already be required to preserve under the 1994 Army Corps permit. At the same time, Applicant's proposal may include the destruction of a third wetland that is to be preserved under the 1994 Army Corps permit. The best rendering in the record of the 1994 Army Corps permit may be Applicant Exhibit 4, which shows eight large wetland areas to be “preserved/enhanced/created.” Two of these are the 10- and 30-acre wetlands on Petitioner’s property, which were preserved in the 1988 Permit. Three of the eight wetlands are in the 115-acre preserve; these were also preserved in the 1988 Permit. The remaining three wetlands to be preserved, enhanced, or created under the 1994 Army Corps permit are in the north end of Applicant’s property. It is difficult to estimate acreage given the scale of the drawing, but the two westerly wetlands are about 4-5 acres each and the easterly wetland is 3-3.5 acres. Subtracting the total preserved acreage of 110 from the acreage identified in the preceding paragraph, the total acreage of these remaining three wetlands is about 12. The two westerly wetlands are in the 39.5-acre preserve that Applicant offers as mitigation in the present case. According to Applicant Exhibit 6, the easterly wetland, or at least the most valuable part of it--the center--is slated for destruction if the District grants the subject permit modification. The proposed destruction of the third wetland is a matter of greater interest to the Army Corps than to the District, but the offer to preserve the other two wetlands really does not provide anything in return for the permitted development impacts because these two wetlands are already preserved under the 1994 Army Corps permit. As the District and Applicant contend, golf course marshes and littoral zones are typically of little environmental importance. Although the 1988 Permit addresses some of these problems, although without supplying any performance standards, golf courses themselves are often conduits of fertilizers and pesticides into the groundwater and nearby surface water. The District and Applicant justifiably question the value of the golf courses approved in the 1988 Permit as wildlife corridors. It is unclear what wildlife would use the corridor, which is surrounded by residential development and bounded by Okeechobee Boulevard. Other factors also militate in favor of Applicant's proposal. But, as the record presently stands, there is no way to find that Applicant has provided reasonable assurance that the proposed development and related mitigation and compensation, as described in the subject permit modification, meet the applicable criteria. The District substantially undervalued the environmental impacts of the proposed modification while substantially overvaluing the environmental impacts of Applicant's proposed contributions in the form of mitigation and compensation. To find adequate assurance as to wetland impacts in these circumstances, where the District did not perform an informed balancing of various impacts in a large-scale development, would permit the District to transform the unavoidably imprecise task of balancing wetland impacts into an act of pure, unreviewable discretion. Listed Species The only relevant listed species onsite is the gopher tortoise, which is a species of special concern. Gopher tortoises use the site to an undetermined extent. Applicant's suggestion that someone brought the tortoises to the site is rejected as improbable. However, due to the resolution of the wetlands issue, it is unnecessary to determine whether Applicant provided reasonable assurance as to the value of functions provided to wildlife and listed species by wetlands. Procedural Issues A. Standing Petitioner has standing due most obviously to flooding considerations. Additionally, the SWM system permitted in 1988 is for the entire 900-acre parcel, of which Petitioner’s parcel is a part. Applicability of ERP Rules The proposed permit modification would substantially affect water resources. The proposed permit modification would substantially increase the adverse effect on water resources. Requirement to Delineate Wetlands Due to the resolution of the wetlands issue, it is unnecessary to determine whether Applicant met applicable requirements concerning the delineation of wetlands. Improper Purpose Petitioner did not challenge the proposed permit modification for an improper purpose. Relevant Provisions of Basis of Review The District revised its Basis of Review after the adoption of ERP rules. Although the order concludes that the District should have applied the ERP rules, and thus the ERP Basis of Review, the order shall discuss both versions of the Basis of Review because the District ignored numerous provisions of both documents in approving Applicant's request for a permit modification. Section 4.6 MSSW Basis of Review requires the District to consider "actual impact" to the site by "considering the existing natural system as altered by the proposed project[,]" including "positive and negative environmental impacts." Section 4.6 requires the District to "balance" these impacts "to achieve a reasonable degree of protection for significant environmental features consistent with the overall protection of the water resources of the District." The proposed permit modification fails to comply with several provisions of Appendix 7 of the MSSW Basis of Review, such as Sections 4.2 requiring a detailed description of the isolated wetlands to be destroyed; 5.1.1(d) favoring the protection of isolated wetlands over their destruction, mitigation, and compensation, which are considered "only when there are no feasible project design alternatives"; and 5.1.6 prohibiting the alteration of water tables so as to affect adversely isolated wetlands. The proposed permit modification also violates various provisions of the ERP Basis of Review. Section 4.0 of the ERP Basis of Review sets the goal of permitting to be "no net loss in wetland . . . functions." Sections 4.2 and following generally require balancing. Section 4.2.1 predicates District approval on a showing that the SWM system does not cause a "net adverse impact on wetland functions . . . which is not offset by mitigation." The ERP provisions first require that the District "explore" with an applicant the minimization of impacts prior to considering mitigation. Section 4.2.2.4(c) specifically imposes monitoring requirements for SWM systems that "could have the effect of altering water levels in wetlands." Sections 4.3.2.2 and following discuss mitigation ratios under the ERP Basis of Review. If the District can explicate a policy to count as mitigation wetlands acreage already preserved under Army Corps permits, the ratios in this case might warrant further consideration, assuming Applicant resubmits an application for permit modification. But it would be premature to consider the ratios on the present record for several reasons. The District has not proved such a policy. If such a policy counts such wetland acreage, on the theory that the District protects function and the Army Corps protects merely the wetland, the record is insufficiently developed as to the functions of the wetlands proposed for protection, as well as the functions of the 13.9 acres of wetlands proposed for destruction. Also, the District has not sufficiently explored project minimization, as is now required under the ERP Basis of Review.
Recommendation It is RECOMMENDED that the District enter a final order denying Applicant's request for a permit modification. ENTERED in Tallahassee, Florida, on June 13, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on June 13, 1997. COPIES FURNISHED: Jeffrey D. Kneen John F. Mariani J. Barry Curtain Levy Kneen 1400 Centrepark Boulevard, Suite 1000 West Palm Beach, Florida 33401 Ronald K. Kolins Thomas A. Sheehan, III Moyle Flanigan Post Office Box 3888 West Palm Beach, Florida 33402 John J. Fumero Marcy I. LaHart Office of Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Samuel E. Poole, III Executive Director Post Office Box 24680 West Palm Beach, Florida 33416
The Issue The issues to be resolved in this proceeding concern whether the Respondent, Tom Mertens, committed a dredge and fill violation within the jurisdiction of the Department by conducting dredging and filling activities in the landward extent of waters of the State, without an appropriate permit, and whether the amount of the Department's costs and expenses associated with determining and abating the pollution involved are reasonable.
Findings Of Fact The Department is an agency of the State of Florida charged with administering and enforcing the dredge and fill provisions contained in Chapter 403, Florida Statutes, and attendant rules contained in Title 62, Florida Administrative Code. The Respondent, Tom Mertens, is a citizen of the State of Florida, who owned a parcel of real property located in Section 1, Township 1 South, Range 17 West, latitude 30 degrees, 25 minutes, 50 seconds, longitude 85 degrees, 54 minutes, 30 second, in Washington County, Florida, at times pertinent hereto. Linda Mertens is named as a Respondent in this action, but no evidence concerning her involvement in the subject matter has been presented. Based upon reports that it had received of certain construction or mechanical work taking place on the area in question, on the margin of the Choctawhatchee River, the Department identified the Respondent, Tom Mertens, as the owner of the property on which certain activities were allegedly occurring and arranged to meet with him to inspect the property. An inspection of the property revealed that dredging and filling activities had taken place. The inspection occurred on December 9, 1992. The inspection revealed that fill material had been placed covering .36 acres, an area of the property approximately 390 feet x 25 feet ("fill road") and another area approximately 70 feet x 25 feet at the lowland end of the fill road. The fill road appeared to be newly installed based upon the appearance of the clay material used, the instability of the road bed and the lack of vegetative growth in an on the sides and adjacent to the road bed, coupled with the appearance of adjacent felled trees. The clay material used for the fill road is not that normally found in a wetland area, such as the site in question. The property in question is in river-bottom land, bordering the Choctawhatchee River. The Department informed the Respondent that the activities done on the property appeared to violate Chapter 403, Florida Statutes, and pertinent provisions of Title 17, Florida Administrative Code. It so informed the Respondent in a warning letter posted on December 29, 1992. Dredging and filling activities in the landward extent of waters of the State require permits from the Department prior to commencing the activity. The Respondent did not have any permit for the dredging and filling activities observed to have occurred on the property. The Respondent had never applied for a permit for such activities. No permission of any sort had been obtained from the Department authorizing conduct of the dredge and fill activities observed on the property by Department personnel. The Choctawhatchee River is a specifically-named water body of the State of Florida and is classed as an outstanding Florida water. Department employee, James Eric Buckelew, has been an environmental specialist with that agency for some 6-1/2 years. He works in the Division of Submerged Lands and Environmental Resource Permitting, formerly called the Division of Wetlands Management. That Division is in charge of dredge and fill permitting activities for the Northwest District of the Department. The jurisdiction of the Northwest District includes the property in question. Mr. Buckelew routinely makes wetland determinations, including delineating the landward extent of State waters, reviewing dredge and fill applications, and insuring that State water quality standards are maintained throughout the regulatory processes within the scope of his duties. He has a Bachelor of Science degree in Environmental Resource Management and Planning and has completed all of the graduate course work for a Master's degree in Coastal Zone Management Biology. His academic courses included wetlands vegetation and ecology, plant taxonomy, botany, soil science, hydrology, geology, geography, hydrologic indicators, and training in the use of a dichotomous key. He has had additional training from the Department's Jurisdictional Evaluation Team, which provides Department employees with training on identification of vegetation, soil indicators, and hydrology, approximately every six months during his 6-1/2 years of tenure with the Department. The Department routinely relies upon his judgment in making determinations of wetland areas and delineations of the landward extent of State waters. Consequently, adequate proof being presented, Mr. Buckelew was accepted as an expert in making determinations of what areas lie within the landward extent of waters of the State and what areas are wetlands in terms of scientific application of the standards contained in the Department's organic rules, particularly the "vegetative index" to a particular site. During the inspection of the property on December 29, 1992, Mr. Buckelew made a determination concerning whether the property impacted by the dredging and filling activities was within the Department's jurisdiction. He determined that it was within the landward extent of waters of the State, using both hydrological and vegetational indicators. The portions of the property impacted by the dredge and fill activities were dominated by jurisdictional vegetation, including black gum (Nyssa biflora); overcup oak (Quercus lyrata); sweet bay magnolia (Magnolia virginiana); cypress (Taxodium); water oak (Quercus nigra); sweet gum (Liquidambar styraciflua); american holly (Ilex opaca); and ironwood (Capinus caroliniana). The portions of the property impacted by the Respondent's dredge and fill activities were in an area dominated by hydrologic indicators of Department jurisdiction, including staining of leaves, buttressing of tree trunk bases, the low elevation of the portion of the property involved, and its proximity to the Choctawhatchee River. The portions of the property impacted by the activities in question have been periodically inundated with water which covered the fill road. Consequently, Mr. Buckelew established that the portions of the property impacted by the dredge and fill activities, indeed, were within the landward extent of the waters of the State and thus within the Department's dredge and fill jurisdiction. Mr. Buckelew walked the entire length of the connection between the areas impacted by the dredge and fill activities and the waters of the State in making this determination, tracing the vegetational and hydrologic connections from the waters of the State to the impacted areas. He did not use soil sampling or analysis in his determination of the landward extent of waters of the State because it was unnecessary in the formation of his opinion. Under the circumstances, employment of the vegetative index and its application to the site would have been sufficient alone. The Department established that it incurred costs and expenses of $250.10 in tracing and abating this violation and pollution source. Mr. Buckelew, in establishing this expense and cost amount, also established that these were reasonable costs and expenses under the circumstances. Removal of the fill material and re-grading of the impacted areas to their natural grade, as well as allowing them to revegetate with natural species that exist on site, would essentially correct the dredge and fill violations and the pollution problem they engender. The Hearing Officer has considered the demeanor of the Respondent and the other witnesses, his prior sworn statement at deposition and his admissions made to Mr. Buckelew during the investigatory phase of this proceeding. Notwithstanding his testimony at hearing to the contrary, it is found that he placed the fill on the portions of the property at issue. It is, likewise, found that the Respondent or persons under his behest, direction, and control used various pieces of mechanical equipment to haul dirt to the fill sites and to perform the dredging and filling activities, including hauling of the fill to the site and its distribution on the property in the nature of that observed by the Department at the time of its inspection. It is found that the dredge site, or the portion of it referred to as the boat ramp, had straight, square-cut sides, which are inconsistent with that sloping area being caused by a flooding event, as maintained by the Respondent. The shape of the boat ramp was clearly consistent with dredging with mechanical equipment. In summary, based upon Mr. Buckelew's and Mr. Gilmore's testimony, which is accepted, regarding the fresh appearance of the fill road, the road's clay composition which is a soil type uncharacteristic of a river flood plain, as well as the demeanor of the Respondent, including consideration of his prior sworn statement at deposition, it is determined that the Respondent placed the fill material in question within the landward extent of waters of the State. The Respondent, in his opening statement, candidly admitted obtaining permits from the Department in the past for other activities. It is determined that he was reasonably aware that dredging and filling on this property might require a permit from the Department. Finally, based upon the totality of the credible evidence and the circumstances proven in this proceeding, the enforcement action and assessment of costs and expenses advanced by the Department are imminently reasonable. This is especially true in view of the fact that the Department has forborne attempting to fine the Respondent, within its authority, as much as $20,000.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent perform the following: Within thirty (30) days from the effective date of the Final Order, the Respondent shall make payment of $250.10 to the Department for the expenses incurred by the Department. Payment shall be in the form of a cashier's check or money order payable to the Department. Within sixty (60) days from the effective date of the Final Order, the Respondent must complete re-grading of the areas of the fill road and boat ramp identified in Exhibit 2 to the NOV and re-grade those areas so as to re- establish the original pre-existing contours and elevations existing before the filling, as indicated by the adjacent, undisturbed areas. The Respondent must also stabilize the restored areas as needed to retain sediment on site during the restoration activities. The Respondent shall utilize turbidity control devices throughout the restored areas, including the use of filter cloth in the vegetated wetlands and floating screens in the open waters. The Respondent shall provide written notification to the appropriate Department personnel within ten (10) days of the completion of the above-described restoration work. The Respondent shall immediately, upon the effective date of the Final Order, cease and desist from further dredging or filling within waters of the State prior to receiving the necessary permit from the Department or written notice from the Department that the proposed activity is exempt from the permitting requirements of the Department. DONE AND ENTERED this 1st day of December, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 1st day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3897 Petitioner's Proposed Findings of Fact 1-41. Accepted. Rejected, as unnecessary and immaterial. Accepted. Respondents' Proposed Findings of Fact 1-3. Accepted, but not materially dispositive. 4. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 5-6. Rejected, as immaterial and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as patently contrary to the preponderant weight of the evidence. COPIES FURNISHED: Michael C. Owens, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mr. Tom Mertens Star Route Box 5B Ebro, Florida 32437 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
Findings Of Fact Petitioner, Robert Brown, is the co-owner of Lot 13 and the northern half of Lot 14, Block 7, Lake Addition to Boynton in Boynton Beach, Palm Beach County, Florida. The property consists of a parcel approximately 150 by 150 feet and is located along the western edge of the Intra-coastal Waterway at N.E. 8th Ave. and N.E. 7th Street in Boynton Beach. At all times pertinent to the issues herein, Petitioner was the owner of this property which is vegetated along the Eastern half with mature mangrove trees which extend back from the water's edge approximately one half the depth of the lot. These mangroves include red, black, and white species and the larger are approximately between 18 and 22 years old. The majority of the trees, however, are younger than that. The Western half of the property is sparsely vegetated and in the heavily vegetated half, there is an open area approximately 30 by 30 feet which appears to have been cleared and on which there are no mature mangrove trees. On July 19, 1984, Petitioner filed an application for a permit to construct a 1625 square foot house on pilings together with a 164 by 4 foot boardwalk extending in a west to east direction from the westernmost edge of the mangrove community to the waterside of the proposed dwelling giving access thereto. The eastern half of the property in question appears to be lower in elevation than the western half and experiences some tidal inundation during periods of high tide. Though there is a riprap deposit along the eastern edge of the property and two berms extending along the landward side of the riprap, water from the Intra-coastal Waterway periodically flows through the riprap, over the berms, and onto Petitioner's property. This water is afforded access onto the property also, by a northwest running ditch located south of the southern boundary of the property which ditch is connected to the waterway. It intersects with another ditch which runs due north to an intersection with an east-west depression, also connected to the Waterway, running along the northern boundary of the property. Mangroves of some size are found in and on the edges of this ditch. Petitioner's construction proposal, involving the driving of supporting pilings for the dwelling, is a dredge and fill activity as defined by the Department of Environmental Regulation's (DER), experts and requires the issue of a dredge and fill permit. There is a conflict between the Petitioner's evidence regarding the physical location of his proposed dwelling and boardwalk and that of the agency personnel who, with benefit of a survey, determined that the larger clearing referenced by the Petitioner does not lie on his property and that the indicated cleared cut through the mangrove community to the waterway on Petitioner's property for the walkway does not lie on Petitioner's property but instead is approximately 30 feet south of the southern boundary. Having reviewed the application submitted by Petitioner, DER requested additional information regarding construction techniques and plans. These have not, to this date submitted in a tangible form the information requested. Petitioner's attorney provided some of the information requested orally to DER at some time in the past, giving some assurances that the disruption of water quality during construction would be kept at a minimum and would be only temporary. However, since DER did not have available to it the additional information it requested so as to appropriately evaluate the true proposal by Petitioner and the effect of any modifications, based on the failure of Petitioner to provide adequate assurances that water quality standards would not be violated and that the project was not contrary to public interest as is required of him by Section 403.918, Florida Statutes, on January 23, 1985, the Department issued an intent to deny the permit. As a part of this intent to deny, the agency suggested that the project be relocated to the upland one-half of the Petitioner's property. Construction there would not have involved any mangrove disturbance and would have been consistent with the agency's standards and policies. Historically the property owned by Mr. Brown did not border the open body of water which now constitutes Lake Worth or the Intra-coastal Waterway. As far back as 1872, the property was dry and supported no mangrove growth. Mangroves existing currently on the property have developed there since the construction of the Intra-coastal Waterway and its joinder with Lake Worth and the installation of the inlets which connect this water body with the Atlantic Ocean. On the property directly north of Petitioner's boundary sits a house built on fill approximately one and a half feet above the gradient of Mr. Brown's lot. Immediately south of his property is a condominium building also located on fill bordering the Intra-coastal Waterway. Evaluation of photographs of the area reveals that both pieces appear to have been identical in make-up to that owned by Petitioner in both topography and vegetation prior to being filled for construction. In fact, this parcel lies in a rapidly developing commercial and residential area. Petitioner also presented the testimony of two long time residents of the area who indicate that prior to the widening of the Intra-coastal Waterway, Petitioner's property did not border the open water of Lake Worth or the waterway. Back in the 1940's and before, the property was not covered with mangrove trees and was, in fact, used as farmland by Mr. Pinder, one of these two witnesses, who grew bell peppers and squash there. Mr. Pinder was hired by Palm Beach County during the 1940's and 1950's to dig mosquito control ditches on the property and Petitioner contends that it was these ditches which developed the connection with the Intra-coastal Waterway and thereby created a jurisdictional wetland. The weight of the evidence, however, indicates that though ditches were dug for mosquito control as described by Mr. Pinder and even before, it was not these ditches which changed the character of the property to jurisdictional wetland. Review of the maps submitted by Mr. Brown shows to a very limited degree some reference to ditches on or near the property in question but neither this evidence nor the testimony of both long-time residents is sufficiently clear and convincing to establish to the satisfaction of the Hearing Officer that the character of Mr. Brown's property was so radically changed by the digging of these ditches as to become jurisdictional because of them. Turning to the question of the impact of the proposed construction on the mangrove system, the evidence presented by the agency and to a lesser degree by Petitioner himself shows that there would be some adverse impact on the mangrove system through the direct destruction of some existing trees and saplings, the trimming of some of the overhanging mangrove canopy, and the subsequent shading of immature mangroves by the construction of the dwelling and the boardwalk. The evidence available indicates that the construction of the dwelling itself cannot be contained within the existing clearing and for the construction of the boardwalk, an additional cut and shading will be required. Mangroves play an important part in the water quality and biological considerations of Section 403.918 Florida Statutes. The deterioration of fallen mangrove vegetation constitutes an important part in the food chain of fish and small invertebrates. Existing trees and roots provide habitat for various birds, invertebrates, mammals, and reptiles and the water quality considerations relating to the filtering of run-off water from uplands and the assimilation of pollutants in the passing water is significant. DER was and is concerned that the proposed project does not provide reasonable or adequate assurances that water quality standards will not be violated. Turbidity, transparency, and dissolved oxygen standards may well be violated during the construction phase and the agency's concerns have not been addressed or lessened by Petitioner's unformed proposals for modification. The fourth standard, that involving biological integrity, will be a continuing and ongoing consideration due to the fact that the shading created by the house and boardwalk will be constant. After full consideration of the application and those limited matters submitted in response to the agency's expression of concern, the agency has concluded that the project will adversely impact the conservation of fish and wildlife and their habitats in the area; will adversely affect fishing and recreational values and marine productivity; will adversely effect current and relative values of functions performed in the area; and will be of a permanent nature. The agency has not, however, quantified these negative effects or demonstrated that they will be of any significant magnitude. It is difficult to conceive that in an area already violated by the encroachment of civilization as demonstrated by the unrestrained fill both to the north and to the south of Petitioner's property, that the preservation of a relatively miniscule enclave, on highly valuable waterfront property, will have any substantial beneficial effect on the overall biological, ecological, or water quality considerations of the Intra-coastal Waterway, Lake Worth, or the Atlantic Ocean. The construction disruption will be minimal and for a limited period of time. The effects of shading will be of a longer duration but would appear to be miniscule in comparison to the surrounding area. DER and its subordinate associate, the Palm Beach County Health Department, both recommend that the application be denied because of Petitioner's failure to provide reasonable assurances that the project will not violate water quality standards and will not be contrary to the public interest. The cumulative impact concerns of both DER and the Health Department are valid in theory but inappropriate here. Evidence that the recent mangrove destruction in this area has been been extensive cannot be debated. No doubt it has been. The fact remains, however, that this property is in a highly desirable location. The area has not been preserved by the State in its program for the accumulation and preservation of wetlands under a state umbrella and is of such a small size that the cumulative impact to be felt from the limited destruction of mangroves here would be minimal. There is some evidence to indicate that a permit was issued to a previous owner of this property allowing the destruction of mangrove seedlings in the western section of the community and this action has not been undertaken. This permit has not expired and is transferable to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation issue permit number 5008992206 to the Petitioner, Robert 8rown for the construction of the house and walkway as proposed, under the provision of adequate and firm reasonable safeguards to minimize water quality disruption during construction by Petitioner. RECOMMENDED this 11th day of February, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 llth day of February, 1987. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, FL 33401 Karen A. Brodeen, Esquire Douglas MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1 Incorporated in Finding of Fact 1. 2. Incorporated in Findings of Fact 2 & 3. 3 & 4. Incorporated in Finding of Fact 4. Incorporated in Finding of Fact 4. Incorporated in Finding of Fact 10. 7 & 8. Incorporated in Findings of Fact 9 & 11 Incorporated in Finding of Fact 11. Incorporated in Findings of Fact 3 6 13. Accepted and incorporated in Findings of Fact 7 & 8. Accepted and incorporated in Findings of Fact 7 & 8. Not a Finding of Fact but a comment on the evidence. By the Respondent Incorporated in Finding of Fact 1. Incorporated in Finding of Fact 3. 3 & 4. Incorporated in Findings of Fact 2 & 4. 5. Incorporated in Finding of Fact 5. 6. Incorporated in Findings of Fact 3 & 6. 7. Incorporated in Finding of Fact 6. 8. Incorporated in Finding of Fact 7. 9 & 10. Incorporated in Finding of Fact 8. 11 Incorporated in Finding of Fact 13. 12. Incorporated in Finding of Fact 14. 13. Incorporated in Finding of Fact 15. 14-16. Incorporated in Finding of Fact 16. 17. Incorporated in Finding of Fact 15. 18. Incorporated in Finding of Fact 17. 19 & 20. Incorporated in Finding of Fact 11. 21-24 Incorporated in Findings of Fact 11 & 12. 25. Incorporated in Findings of Fact 17 & 18. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ROBERT BROWN, Petitioner, DOAH CASE NO. 85-0517 OGC FILE NO. 85-0122 vs. STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION Respondent. /
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. -
The Issue Whether Respondent Richardson’s application for a wetlands resource permit to construct a private road and bridge through wetlands should be denied for failing to provide mitigation to offset the impacts to existing wetlands. Whether Respondent Richardson had provided the Department with reasonable assurance that he or she owns or has sufficient authorization to use certain land in mitigation to offset the wetland impacts.
Findings Of Fact In January of 1990, John Richardson applied to the Department for a wetland resource (dredge and fill) permit under Section 403.918, Florida Statutes to construct a private road and bridge through wetlands. The proposed project would impact 0.032 acres of wetland. The proposed project is not located in an Outstanding Florida Water (OFW). The proposed project would adversely affect the following: the conservation of fish and wildlife; the fishing, recreational values, and marine productivity in the vicinity of the proposed project; and the current condition and relative value of functions being performed by the wetlands impacted by the project. The proposed project would be permanent in nature. The proposed project would not meet the criteria of Section 403.918(2)(a) Florida Statutes, without mitigation adequate to offset the impacts to wetlands. To provide adequate mitigation for the proposed project, Respondent John Richardson proposed to create and preserve 0.029 acres of new wetlands and preserve 4.35 acres of existing wetlands. The preservation would consist of granting to the Department a perpetual conservation easement over the mitigation wetlands. Respondent John Richardson represented to the Department that he was the record owner or had permission to use the land that he offered for mitigation. The Department reasonably relied on that representation. The mitigation proposed by Respondent John Richardson would be adequate to offset the impacts to wetlands resulting from the proposed project. On March 4, 1992, the Department issued to John Richardson a wetlands resource permit for the proposed project. The Department was not aware, before it issued this permit, that John Richardson might not own or have permission to use the mitigation land. The Department was substantially justified in issuing the permit to John Richardson on March 4, 1992. Specific conditions 28-31 of that permit required Respondent John Richardson to grant the Department a conservation easement over the mitigation land within thirty days after issuance of the permit. Respondent John Richardson failed to grant the Department the required conservation easement, and failed to publish notice of the Department’s action. On July 22, 1996, Petitioners filed a timely petition with the Department challenging the Department’s issuance of the March 4, 1992, permit to Respondent John Richardson. On September 11, 1996, Janet Richardson filed an application with the Department for transfer of the March 4, 1992, permit to her following the dissolution of marriage with John Richardson. By letter dated October 11, 1996, the Department requested Janet Richardson to provide additional documentation to show that she either owns the mitigation land or has permission to use that land. Janet Richardson was required to provide a legal survey drawing depicting the mitigation land, property records showing ownership of that land, and a notarized statement from the land owner authorizing her to use that land. The Department specifically advised Janet Richardson that it could not approve the proposed project if she failed to submit this requested documentation to the Department prior to the final hearing. Janet Richardson failed to provide the requested documentation by the date of the final hearing in this matter, or subsequently. As of November 6, 1996, no work had begun on the proposed project. At the hearing, the Department adequately explained its change in position from deciding to issue the permit (on March 4, 1992) and proposing denial of the permit (on November 6, 1996). The Department relies on an applicant’s representations regarding ownership of or right to use land unless a problem is brought to the Department’s attention. In this case, the Department was not aware that there was a problem with the applicant’s right to use the mitigation land until the petition was filed with the Department on July 22, 1996. Janet Richardson failed to provide proof that she either owns or is authorized to use the land to mitigate the impacts to wetlands from the proposed project. Without such proof, Janet Richardson failed to prove that she could mitigate those same impacts from the proposed project.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Respondent Richardson’s request for a wetlands resource permit for the proposed project.ONE AND ORDERED this 17th day of December, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996. COPIES FURNISHED: Richard Stauffer Post Office Box 97 Aripeka, Florida 34679-097 Cy Plata Post Office Box 64 Aripeka, Florida 34679 Steven McCallum Post Office Box 484 Aripeka, Florida 34679 Leslie Neumann Post Office Box 738 Aripeka, Florida 34679 John Richardson 700 West Broad Street Brooksville, Florida 34607 Janet Richardson 1603 Osowaw Boulevard Springhill, Florida 34607 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virgina B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
