The Issue Whether Betmar Utilities, Inc.'s application for an expansion of territory under its water and wastewater certificates in Pasco County should be approved by the Public Service Commission.
Findings Of Fact Betmar Utilities, Inc. is a private utility company who owns and holds Florida Public Service Commission Certificates Number 137W and No. 98S. These certificates grant Betmar the right to operate a water and wastewater system in a specified territory within an unincorporated area of Pasco County. Betmar seeks an extension of its certified territory into the areas immediately to the north and south in an unincorporated area of the county. There is, or will be in the near future, a need for water and wastewater services in the proposed amended territory. An Application for Amendment of Territory was filed with the Commission to allow Betmar to service the area on November 13, 1989. When Betmar noticed the City of its pending application, an objection was filed to the proposed expansion. The objection specifically relates to the property on the south side of Geiger Road, which extends 330 feet south of the roadway, and adjoins the City's boundaries. Although the City does not currently provide services to this locale, it does own water and sewer lines on the northern side of Geiger Road in the Silver Oaks area. Other water and sewer lines in the City's system extend below the south side of Geiger Road at the far eastern portion of the area for which Betmar is seeking the extension of territory. In an interlocal agreement between the City and the County dated February 9, 1988, these governmental entities established designated service areas for water and wastewater services in this particular area of the county. The purpose of the agreement was to promote the economic delivery of services to citizens in the area, and to provide for the necessary long-range planning inherent in the provision of these services. Prior to the agreement, the County was authorized to provide the services to the areas for which an extension is sought by Betmar. The service area boundaries delineated in the agreement were to be periodically reviewed in conjunction with the review of each party's respective comprehensive plans. Pursuant to this agreement, the City and County determined that the City's Service Area Boundry would include the area south of Geiger Road that abuts Betmar's current service area. The City and the County each relied upon this interlocal agreement in the creation of their respective comprehensive plans. However, no additional action has been taken by the City to service the area. The City is not actually operating within the disputed area for a number of reasons. First of all, the City has adopted an ordinance which requires annexation of contiguous property as a condition of receiving its water and sewer services. The disputed portion of the proposed amended territory is not within the city limits and has not been annexed. Secondly, the City is not prepared to build utility lines to service the disputed proposed amended territory until the new bypass road along Geiger Road is built, and the proper right-of-way is obtained. At that time, the City would like to extend the Silver Oaks line under Geiger Road to the south, and the line along the eastern side of the disputed portion of territory to the west. These anticipated expansions correlate with the City's Service Area Boundry in the interlocal agreement which remains unchanged between the City and the County. A proposed service date was not provided by the City at the formal hearing. The City seeks to control land use and development of property along the Geiger Road corridor though its ability to provide or withhold utility services. Betmar also has water and sewer lines abutting or located on all properties described in its application for extension, including the area in controversy. These lines are currently active due to Betmar's water and sewer system which is in the center of the area targeted for expansion. Both Betmar and the City have the technical and financial ability to provide water and wastewater services in the proposed amended territory. Betmar has a tariff approved by the Commission which allows it to charge 110% of the cost of the extension of service from its existing lines to any property seeking service. Owners of property abutting Geiger Road have contacted Betmar about the possibility of providing service. A formal request for service has been made by Jake Developers for service in that area. Betmar's sewage collection facilities abutting the Geiger Road property are gravity lines. The City's sewage collection facilities in close proximity to the area are force mains. Betmar does not charge impact fees for connection into its system. The City charges a water impact fee of $350.00 and a sewer impact fee of $1,278.00 for connection into its system. Betmar anticipates a reduction in water and sewer rates if the extension is approved. Betmar presented no evidence about plans for further financial investment which would enable the utility to provide service in the area for which the extension has been requested because Betmar believes further investment is unnecessary. Betmar has an agreement with the County that states the County will provide bulk wastewater treatment to Betmar for the purpose of offering centralized wastewater services from the County's Southeast Subregional Wastewater Treatment Plant for a twenty-five year term. The County has placed a possible qualification on the term of years in the agreement by inserting the following clause: ... its first responsibility is to the customers inside its own service limits and that it reserves the right to act in the best interest of those customers in all circumstances. The agreement between the County and Betmar has not been approved by the Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: The Commission should deny Betmar's application for an amendment to its certified territory in Pasco County as the applicant has failed to provide that it will be allowed the continued use of the County's Southeast Subregional Wastewater Treatment Plant for the twenty-five year term set forth in the agreement presented at hearing. DONE and ENTERED this 16th day of July, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of July 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: 1. Accepted. See HO #2. 2. Accepted. See HO #1. 3. Accepted. See HO #3. 4. Accepted. See HO #11. 5. Accepted. See HO #4. 6. Accepted. See HO #9. 7. Accepted. See HO #11. 8. Accepted. See HO #13. 9. Accepted. See HO #14. 10. Accepted. See HO #9. 11. Accepted. See HO #9. 12. Accepted. See HO #11. 13. Accepted. Rejected. Improper legal conclusion. Accepted. See HO #5. Accepted. See HO #8. Accepted. See HO #14. Accepted. See HO #14. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #15. Accepted. See HO #15. Accepted. See HO #16. Rejected. Improper legal conclusion. See HO #17. Accepted. See Preliminary Statement. Respondent's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted that an interlocal agreement between City and county existed. See HO #5. The rest of the paragraph is rejected as legal argument. Intervenor's proposed findings of fact are addressed as follows: 1. Accepted. See HO #2. 2. Accepted. See HO #12. 3. Accepted. See HO #12. 4. Accepted. See HO #3. 5. Accepted. See HO #11. 6. Accepted. See HO #4. 7. Accepted. See HO #12. 8. Accepted. See HO #9. 9. Accepted. See HO #9. 10. Accepted. See HO #9. 11. Accepted. See HO #5. COPIES FURNISHED: Scott L. Knox, Esquire 28870 U.S. Highway 19 North Suite 230 Clearwater, Florida 34621 Thomas P. McAlvanah, Esquire 37818 Highway 54 West Zephyrhills, Florida 34248 Robert J. Pierson, Esquire Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0863 David Swafford, Executive Director Florida Public Service Commission 106 Fletcher Building 101 East Gaines Street Tallahassee, Florida 32399-0850 Steve Tribble, Director Records and Recording Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399 Susan Clark, General Counsel Florida Public Service Commission 212 Fletcher Building 101 East Gaines Street Tallahassee, Florida
The Issue The issue is the number of potential mitigation bank credits that Respondent, St. Johns River Water Management District (District), should award Petitioner, CRP/HLV Highlands Ranch, LLC (Highlands Ranch), based on the application of Chapter 373, Florida Statutes,1 and the Uniform Mitigation Assessment Method (UMAM) contained in Florida Administrative Code Rule Chapter 62-345.2
Findings Of Fact Based upon all of the evidence, including the parties' Stipulations, the following findings of fact are determined: The Parties Highlands Ranch is a Delaware limited liability corporation registered with the State to do business in Florida. The application reflects that its offices are located at 9803 Old St. Augustine Road, Suite 1, Jacksonville, Florida. The District is a special taxing district created by the Florida Water Resources Act of 1972, as codified in Chapter 373, Florida Statutes. It is charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. These rules include, among others, Rule Chapters 40C-4 and 40C-42, and the Applicant's Handbook. In addition, the District is charged with implementing Chapter 373, Florida Statutes, in part through application of Rule Chapter 62-345, entitled Uniform Mitigation Assessment Method and commonly referred to as UMAM. It has Environmental Resource Permit (ERP) jurisdiction in this matter. Background On January 5, 2009, Highlands Ranch submitted to the District permit application 4-019-116094-2 for approval of a mitigation bank on its property located in the County. On November 19, 2009, the District issued its notice of intent to approve the application and to award 204.91 potential UMAM credits. On November 25, 2009, Highlands Ranch timely filed its Petition challenging the proposed agency action. By an Amended Petition later filed on December 18, 2009, it requested a formal hearing to contest the District's proposal to award only 204.91 UMAM credits. Instead, it contended that 688.324 credits should be awarded. In Highland Ranch's Stipulation, however, it reduced the requested number of credits to 425. In a second Report issued on February 18, 2010, the District has likewise reduced the number of credits that it asserts should be awarded from 204.91 to 193.56.3 The sole issue in this case is the number of UMAM credits the District should award Highlands Ranch. In its Amended Petition, Highlands Ranch generally contends that the District has misapplied UMAM in evaluating the application; that UMAM is a standardized procedure for determining mitigation; that the District's application incorrectly introduces other variables into the UMAM analysis not contemplated by the rule; and that the District's application of UMAM is different from the manner in which DEP, SWFWMD, and the South Florida Water Management District apply UMAM. The Property Highlands Ranch proposes to construct, implement, and operate a mitigation bank on 1,575.5 acres in the County. (The banking site is a part of a larger 1,800-acre tract purchased by the applicant for $15 million.) The property is located in the west central part of the County around three miles south of County Road 218, southwest of the intersection of Louie Carter Road and Palmetto Road, and approximately two miles east of the Bradford County line. Jennings State Forest lies to the east, Camp Blanding Military Reservation (a Florida National Guard training facility) lies to the south, and a titanium mine abuts the property to the west. The property is within the District's jurisdictional territory. The mitigation bank property consists of approximately 1023.50 acres of uplands and 552 acres of wetlands and is located within the Northern St. Johns River and Northern Coastal Mitigation Drainage Basins. The bank site lies at the confluence of the proposed Camp Blanding/Osceola Greenway and the proposed North Florida Timberlands and Watershed Reserve. These greenways are currently listed as desirable parcels for acquisition through the Florida Forever program, a conservation and recreation land acquisition program which is implemented by DEP, but acquisition and implementation of these greenways have not been completed. The acquisition of the Florida Forever parcels is intended to conserve natural resources, provide habitat to a number of listed species, and establish protected corridors between previously-acquired public lands. The property has also been identified as a Priority 1 category in the Century Commission's Critical Lands and Waters Identification Project (CLIP), a database of statewide conservation priorities which was developed to rank the relative importance of the Florida landscape in terms of biodiversity, landscape, and water resources. At the present time, portions of the site are utilized for pine production, and have been for decades. Parts of the property have been subjected to typical pine plantation management activities including removal and suppression of native vegetation, application of herbicides and fertilizers, installation of bedding and furrows, construction of trail roads and ditches, and fire suppression. Timber stands on the site vary in age from ten to twenty-five years, and the planted pines within parts of the property have been recently harvested. Much of the community types present on the site have been altered from their native community type by the above- described historic and on-going silviculture activities. The existing communities present on the site include approximately 991 acres of mesic and xeric pine plantation, 224 acres of hydric pine plantation, 328 acres of isolated and contiguous wetlands, and 32.40 acres of trail roads, electric easements, and structures. Most of the onsite wetlands are associated with two named creek systems, Boggy Branch Creek and the Tiger Branch Creek, which are oriented in a west-to-east direction on the property. Boggy Branch Creek is located in the northern portion of the property, while Tiger Branch Creek is located in the southern part of the site. Both of these creek systems flow offsite to the east into the North Fork of Black Creek, which flows northward, ultimately reaching the St. Johns River. The current County land use designation of the property is Agriculture. This designation allows the construction of one dwelling unit per twenty gross acres with a maximum cap of fifty residential building permits per site per year. The County's Future Land Use Map (FLUM) indicates that there are approximately thirty-seven acres of Conservation Overlay on the property. The density of the overlay area is limited to one dwelling unit per hundred acres. The current zoning on the property is also Agriculture (AG). This zoning category was established for the protection of agriculture as a major industry. This includes the prevention of encroachment on agriculture lands by incompatible uses and the protection of watersheds, water supplies, wilderness and scenic areas, and conservation and wildlife areas. The AG zoning category provides for a range of acceptable permitted uses within that category, ranging from single-family dwellings with agricultural accessory uses to storage of heavy equipment and plant nurseries. There are also a range of conditional uses within the AG zoning category, which are allowable, subject to the satisfaction of additional criteria specified within the zoning regulations, after approval by the County. These include, among others, a Class III trench sanitary landfill, in which debris is buried and leveled at the ground surface. In order to use the property for an above-ground Class I landfill, rezoning of the property by the County would be necessary. If it does not secure a desirable amount of mitigation credits, Highlands Ranch has indicated it will seek to use the uplands part of the property as a Class I landfill. The County has issued a Request for Qualifications (RFQ) for entities interested in operating a Class I landfill in the County, but no site has been selected or rezoned as of this date. See Petitioner's Exhibits 15 and 16. Pursuant to the RFQ, and through its consultant, Highlands Ranch has performed a preliminary site suitability analysis for the property. See Petitioner's Exhibit 17. It has also received a "letter of interest" from Waste Management, Inc., concerning the placement of a landfill on the site. Whether Highlands Ranch's site would be selected by the County, whether a rezoning application would be successful, and whether a permit would then be issued by the appropriate regulatory authority, is speculative at this point. On the other hand, the District's experts opined that based upon a highest and best use analysis, silviculture is a more likely interim use of the property until market conditions change to increase the demand for large-lot, single-family developments. Mitigation Bank Permits A mitigation bank is defined in Section 373.403(19), Florida Statutes, as "a project permitted under s. 373.4136 undertaken to provide for the withdrawal of mitigation credits to offset adverse impacts authorized" by an ERP issued under Part IV, Chapter 373, Florida Statutes. (A mitigation bank permit is a type of ERP.) Section 373.4136(1), Florida Statutes, authorizes the District to require a permit to establish, implement, and operate a mitigation bank. The bank then stores credits, and when a developer fills wetlands, and is legally required to replace them, he can purchase the banked wetland credits from the "banker" (in this case Highlands Ranch) and use them to meet the mitigation requirements. Mitigation banks are intended to "emphasize the restoration and enhancement of degraded ecosystems and the preservation of uplands and wetlands as intact ecosystems." § 373.4135(1), Fla. Stat., and § 12.4.1, A.H. When establishing a bank, the District's ERP rules specifically recognize preservation, enhancement, and restoration as separate forms of mitigation. See §§ 2.0(r), (pp), and (vv), A.H. Preservation as a form of mitigation "will most frequently be approved in combination with other mitigation measures." § 12.3.2.2., A.H. Under Section 373.4136(4), Florida Statutes, a mitigation bank is to be awarded a number of mitigation credits by the permitting agency. A mitigation credit is a "standard unit of measure which represents the increase in ecological value resulting from restoration, enhancement, preservation, or creation activities." Fla. Admin. Code R. 62-345.200(8). The number of mitigation credits must be "based upon the degree of improvement in ecological value expected to result from the establishment and operation of the mitigation bank as determined using a functional assessment methodology." § 373.4136(4), Fla. Stat. Ecological value is defined in Rule 62-345.200(3) as: the value of functions performed by uplands, wetlands and other surface waters to the abundance, diversity, and habitats of fish, wildlife, and listed species. Included are functions such as providing cover and refuge; breeding, nesting, denning, and nursery areas; corridors for wildlife movement; food chain support; natural water storage, natural flow attenuation, and water quality improvement which enhances fish, wildlife, and listed species utilization. The District has adopted a substantially similar provision in Section 12.4.5(b), Applicants Handbook. After mitigation credits are awarded, a credit release schedule is set for the mitigation bank. See § 373.4136(5), Fla. Stat. The statutory criteria for reviewing and acting on an application for a mitigation bank permit are set forth in Section 373.4136, Florida Statutes. The District has also adopted rules governing the establishment and operation of mitigation banks which are contained in Rule Chapter 40C-4 and Section 12.4 of the Applicant's Handbook. The Application Highlands Ranch is proposing to place a conservation easement over the mitigation bank property and to conduct enhancement activities in those areas of the property needing improvement as a result of current land uses. Generally, it proposes to cease all pine production practices and cutting of cypress and hardwood trees after the permit is issued. It has also proposed to improve hydrologic conditions on the property by removing a trail road, installing four low water crossings, and removing pine bedding and furrows within all areas planted with pine on the property. Finally, supplemental plantings of appropriate canopy species will be conducted. The project will be implemented in three phases: Phase 1 (554.52 acres); Phase 2 (547.42 acres); and Phase 3 (473.55 acres). The parties agree that Highlands Ranch has satisfied all requirements in the Applicant's Handbook relating to a conservation easement, District access to the property, a letter of credit, title insurance, a boundary survey, and mitigation bank activities. The parties further agree that Highlands Ranch has provided reasonable assurance that all statutory and rule requirements have been met, and that it meets the requirements for the issuance of an ERP to establish and operate a mitigation bank. The only dispute is the number of credits that it should be awarded. The difference in the credits proposed by the parties is based upon how they interpret and apply the UMAM rule. Although conflicting evidence was presented by the parties on this issue, the more persuasive evidence supports a finding that the methodology used by the District is appropriate under the facts presented herein, and that the number of credits that it proposes to award the applicant should be accepted. The UMAM Process When an applicant proposes to establish a mitigation bank, it must submit the necessary supporting information for the application of Rules 62-345.400, 62-345.500, and 62-345.600. This information generally includes the current site conditions, the mitigation plan, and how the applicant expects the mitigation plan to result in ecological gain. Once an application is filed, the District's responsibility is to verify this information and apply the assessment method described in the UMAM rule to determine the potential amount of mitigation credits to be awarded. See Fla. Admin. Code R. 62-345.300(1). Here, before completing the UMAM sheets, the District performed a review of the application, conducted multiple site inspections, met with the applicant's consultants, submitted requests for additional information, and reviewed other resources such as the Natural Resources Conservation Service soil maps for the area, the UMAM Training Manual, aerial photographs, and the Florida Forever acquisition list. Section 373.414(18), Florida Statutes, provides in part that DEP "and each water management district responsible for implementation of the environmental resource permitting program shall develop a uniform mitigation assessment method for wetlands and other surface waters" that would provide "an exclusive and consistent process for determining the amount of mitigation needed." Once adopted, the method is "binding on the department, the water management districts, local governments, and any other governmental agencies." Id. In 2004, pursuant to the mandate of the statute, DEP adopted Rule Chapter 62-345, entitled UMAM. UMAM is the sole means for determining the amount of mitigation credits to award to mitigation banks receiving permits after 2004 and applies to Highlands Ranch's application. See §§ 373.414(18) and 373.4136(4), Fla. Stat. Highlands Ranch argues that the use of the words "consistent" and "uniform" in Section 373.414(18), Florida Statutes, means that DEP's methodology for implementing the UMAM rule is the only acceptable method that can be used. However, the DEP Environmental Administrator in charge of policy and oversight for all rules relating to mitigation, including UMAM, stated that the District's method, while different in some respects from the method used by DEP, is still "allowable under the rule," given the rule's variables. Tr. 201. The DEP expert described UMAM as a "framework" in which a number of variables come into play, and that besides using biological and ecological data, the assessor must also use "reasonable scientific judgment and [his or her] best professional judgment" in performing the assessment. Therefore, even though UMAM is a "standardized" or "uniform" procedure, it can be reasonably inferred that within the rule's broad framework, an assessor, using reasonable scientific judgment and his or her best professional judgment, has some leeway in applying the rule, and as is the case here, two assessors can obtain two different results on the same property. Notably, the SWFWMD also interprets the rule in the same manner as the District. The method used by the District in this case and by SWFWMD, although different from DEP, has never been questioned by DEP, and DEP has never advised either agency to modify or change its approach. Further, there are no DEP final orders or other precedent approving or disapproving either methodology proposed by the parties. Finally, Highlands Ranch's expert, Dr. Dennis, agreed, with certain limitations, that there is "some flexibility" in the UMAM rules in terms of using "reasonable scientific judgment." In general terms, the UMAM is designed to assess any type of impact and mitigation of wetlands and wetlands functions, including the evaluation of mitigation banks, and it provides a framework for statewide standardized wetland assessment across community type. A qualitative characterization of the property (known as a Part I evaluation) is first conducted by the assessor by dividing the property into assessment areas for wetlands and uplands and completing a Part I evaluation and score sheet for each assessment area. See Fla. Admin. Code R. 62-345.200(1) ("'[a]ssessment area' means all or part of a wetland or surface water impact site, or a mitigation site, that is sufficiently homogeneous in character, impact, or mitigation benefits to be assessed as a single unit"). Under Part I, the assessment areas must be described in sufficient detail to provide a frame of reference for the type of community being evaluated and to identify the functions that will be evaluated. See Fla. Admin. Code R. 62-345.400. Each area description must include the size of the area, its native community type, and the functions it could optimally provide to fish and wildlife and their habitat. Id. This Part must be completed before scoring the assessment area in Part II, since the frame of reference will be used to determine the degree to which the assessment area provides those functions and the amount of function lost or gained by the project. A correct determination of the appropriate assessment areas is important as this affects the acreages that will be scored in the Part II evaluation, which in turn affects the determination of the number of credits to be awarded to the bank. Using the frame of reference established in Part I, the assessor is then required to score the amount of functional gain that will be achieved by implementation of the types of mitigation to be conducted on the property. See Fla. Admin. Code R. 62-345.500(1). Under the Part II evaluation, wetland assessment areas are evaluated in three categories or indicators of function, scored numerically on a scale from 0 to 10 (where 10 indicates a minimally impaired system): location and landscape support; water environment; and community structure.4 See Fla. Admin. Code R. 62-345.500(6). Upland assessment areas are only scored for two indicators of function: location and landscape support and community structure. See Fla. Admin. Code 62-345.500(2). The rule then sets forth in a detailed manner how the assessor calculates the functional gain for each area to obtain the potential number of banking credits. The primary reasons for the credit award differences by the parties in this case are the District's use of a two-step approach, while Highlands Ranch used a one-step approach,5 and the fact that the District gave a much smaller amount of functional gain for the location and landscape support category for upland enhancement mitigation activities than did the applicant. The District's Assessment Part I Assessment The District first identified eleven geographic areas on the property and grouped them into seven mitigation assessment areas. It then completed a Part I evaluation and score sheet for each assessment area. The District made the determination that each assessment area was sufficiently homogeneous in character to be assessed as a single unit based on information received from the applicant during the review process, including historic aerial photographs and soil maps; observations during three, six-hour site visits in March and June 2009 and January 2010; a review of literature and information, including some related to community types; and designations of the site as a potential acquisition parcel through a program such as the Florida Forever program. All of the assessment areas on the property are mitigation sites since this is an application for a mitigation bank. The seven assessment areas (and their target community and acreage) identified by the District for the Part I assessment are: Wetland Enhancement - Wetland Forested Mixed Wetlands 1 and 2 (W1 and W2 - 223.8 acres); Bay Swamp - Preservation with minor enhancement W3 and W4 (42.4 acres); Stream and Lake Swamp - Preservation with minor enhancements W5 and W6 (239.8 acres); Wetland Enhancement - Wetland Forested Mixed W7 and W8 (43.9 acres); Stream and Lake Swamp - Restoration W9 (0.5 acres); Upland 1 (U1) Pine Plantation to Longleaf Pine Xeric Oak (203.94 acres); and Upland 2 (U2) Pine Plantation to Upland Pine Forest/Pine Flatwoods (786.98 acres). The specific locations, native community type, and acreage for each area are found in District Exhibit 3. (In contrast, Highlands Ranch's expert, Dr. Dennis, identified eleven wetlands and uplands areas grouped into the following six assessment areas: W1 and W2 (257.44 and 2.86 acres); W7 and W8 (45.17 and 5.24 acres); W3 and W4 (28.28 and 1.57 acres); W5, W6, and W9 (209.85, 1.81, and 0.58 acres); U1 (291.69 acres); and U2 (699.21 acres). See Petitioner's Exhibit 11.) Despite the differences in the size and characteristics of the parties' assessment areas, another Highlands Ranch consultant, Mr. Hamilton, agreed that the District's acreage and native community type for each area were correct. The District's site inspections were also attended by members of the Interagency Review Team (IRT), made up of representatives of the District (whose mitigation banking manager is co-chair), United States Army Corps of Engineers, United States Fish and Wildlife Service, National Marine Fisheries Service, and the United States Environmental Protection Agency. The record does not show that any IRT member objected to the District's identified assessment areas or designated native community types. Dr. Dennis disagreed with the native community type identified by the District for several of the wetlands on site. For example, on the Wetland Enhancement - Wetland Forested Mixed W1 area, he identified the native community type of the wetlands lying adjacent to Boggy Branch and Tiger Creek as wet pine flatwoods, as opposed to the District's designation of Wetland Forested Mixed/Hydric Hammock, which is a combination of pine and hardwoods. However, Dr. Dennis' identification is not consistent with the generally accepted description of a pine flatwoods community, which generally occurs on flat terrain. There is a 70-foot drop in elevation across the mitigation bank property, and the slope is particularly significant in the W1 areas. Also, the current silviculture conditions on this area are able to support hardwoods, and the natural vegetation occurring in the area is a hardwood type of vegetation. Dr. Dennis further criticized the District's use of only a code number from the Florida Land Use and Cover Classification System (FLUCCS) to describe the target community on each area and contended that more detail was needed to comply with the rule. The difference in descriptions used by the parties can be found when comparing Petitioner's Exhibit 11 and District Exhibit 3. Specifically, besides using a FLUCCS code, Dr. Dennis also provided a more detailed description of the plant species, soils, and canopy in the Assessment Area Description section of the form. He also differed in his descriptions of the functions, historic use, uniqueness, and hydrologic connections of the property. While the District's expert agreed that the lengthier descriptions used by Dr. Dennis in his Part I assessment were "more helpful" to someone unfamiliar with the UMAM process, she established that it is not necessary to provide more detail here than a FLUCCS code and the type of narrative used by the District on the Part I form. These codes, together with the District's more succinct assessment area descriptions, were sufficient information to enable the District, as the assessor, to properly evaluate and score the assessment area's functions, as required by the rule. Dr. Dennis also identified different acreages for the upland assessment areas U1 and U2 based on the boundaries of the native community types. (Dr. Dennis determined the size of the U1 and U2 areas to be 291.69 and 699.21 acres, respectively, while the District determined the areas for U1 and U2 to be 203.94 and 786.98 acres, respectively.) However, community boundary lines in the environment are not distinct lines or boundaries as one would see on a map. Where the same plant species are found in two adjacent communities, and the soil types and characteristics are similar, it is not uncommon for two ecologists to have a different interpretation as to where community boundaries should be placed. The evidence supports a finding that the District's characterization and acreage for each assessment area were reasonable, should be accepted, and provide a sufficient frame of reference to use in the Part II evaluation of the property. Part II Assessment of Wetlands Using the frame of reference established in Part I, the District was then required to score the amount of functional gain that will be achieved by the implementation of the types of mitigation to be conducted on the property. For each wetland area identified under Part I, the District first evaluated the functional gain of preserving the wetland assessment area and then scored the additional functional gain that would result from the enhancement or restoration activities proposed for that assessment area. This type of process, which evaluates the functional gain associated with each type of mitigation, is referred to as a "two-step approach" under UMAM and is the primary focus of the controversy. Using this approach, the District prepared a Part II score sheet for both preservation and enhancement. In contrast, Highlands Ranch used a "one-step approach," which scored any area that would be both preserved and enhanced (restored) only as enhancement (restoration) under UMAM and did not apply or conduct the analysis for preservation. While the two-step process is not specifically described in the rule, given the variables in the rule, DEP's acknowledgement that the District's methodology is "allowable," and the leeway in the rule itself, the District's two-step methodology is found to be permissible and has been accepted. For preservation, the District evaluated each wetland assessment area to be preserved under the "without preservation" condition and the "with mitigation" condition with regard to three indicators: location and landscape support; water environment; and community structure. A "'with mitigation' assessment means the outcome at an assessment area assuming the proposed mitigation is successfully completed," while a "'without preservation assessment' means the reasonably anticipated outcome at an assessment area assuming the area is not preserved." Fla. Admin. Code R. 62-345.200(11) and (12). When assessing preservation, the "without preservation" assessment evaluates an "assessment area's functions with regard to the three indicators, considering the extent and likelihood of what activities would occur if it were not preserved, the temporary or permanent effects of those activities, and the protection provided by existing easements, restrictive covenants or state, federal and local rules, ordinances and regulations." Fla. Admin. Code R. 62- 345.500(3)(a). When assessing preservation, the "with mitigation" assessment is scored with regard to the indicators after considering "the potential of the assessment area to perform current functions in the long-term considering the protection mechanism proposed." Id. The gain in ecological value for each assessment area is determined by the mathematical difference between the Part II scores for the "without preservation" and the "with mitigation" conditions (referred to as the "delta") multiplied by a preservation adjustment factor (PAF). Id. For each of the three indicators, the District evaluated the applicable considerations set forth in Rule 62- 345.500(6)(a)-(c). For areas proposed to be restored or enhanced, Highlands Ranch's one-step approach did not consider what would happen to the property if it were not preserved. Under the District's two-step approach, however, which considers preservation as a form of mitigation, the "without preservation" assessment considers "the extent and likelihood of what activities would occur if it were not preserved." Fla. Admin. Code R. 62-345.500(3)(a). On this issue, the evidence is sharply conflicting. The more persuasive evidence supports a finding that the property will more than likely continue to be managed for timber production, and the adjacent uplands outside of each wetland assessment area will in the long term more than likely be developed as low density residential development. The owner's contention that the most likely scenario for future use of the property is a Class I regional landfill has been rejected as being highly speculative at this point, given the difficult hurdles the applicant must overcome in order to secure zoning and permit approval for that type of activity. Preserving the wetlands on the property will prevent silvicultural activities within each assessment area and, with the implementation of the proposed mitigation bank, each wetland assessment area will be adjacent to protected uplands, rather than residential development that would likely otherwise occur. Therefore, the landscape support of each wetland assessment area will improve. The District recognized this improvement by awarding a one-point increase in the location and landscape support indicator for the preservation of wetland assessment areas W1 through W8. The District also recognized improvements in the community structure that would occur as a result of a wetland assessment area's preservation by awarding a one-point and two- point increase in the community structure indicator for wetland assessment areas W1, W2, W5, W7, and W8, and for W3, W4, and W6, respectively. The District did not award any increase in the score with regard to the water environment indicator for the preservation of wetland assessment areas W1 through W8. In areas W1 and W2, recording a conservation easement could improve some of the water environment through natural erosion and degradation of the silvicultural beds over a long period of time, which would eventually fill the furrows. The water environment would also be improved by successional vegetative processes. However, Highlands Ranch has proposed to speed up the lengthy natural process in these areas by vegetative thinning and flattening the silvicultural beds and furrows. Therefore, the District accounted for these improvements in the water environment being implemented on a faster schedule when it scored these areas for enhancement. No water environment improvements will occur due to preservation of the remaining areas. No preservation value was awarded for assessment area W9 (0.5 acres) since this is an existing road and gains in the ecological value will be achieved through the restoration activities proposed by Highlands Ranch. After the scores for the preservation of areas W1 through W8 were prepared, the District determined the appropriate PAF for each assessment area. Fla. Admin. Code R. 62-345.500(3)(a). The PAF is scored on a scale from zero (no preservation value) to one (optimal preservation value) on one- tenth increments. Id. The PAF is essentially a way to value the preservation area. The District determined each PAF by weighing the relative significance of each of the five considerations set forth in Rule 62-345.500(3)(a)1.-5. These considerations are not given equal weight since they are weighed based on applicability and relative significance. Id. One of the considerations is "[t]he extent and likelihood of potential adverse impacts if the assessment area were not preserved." Fla. Admin. Code R. 62-345.500(3)(a)5. The District gave considerable attention to this criterion. In assessing the potential adverse impacts, the District retained expert land planners and appraisers to evaluate the threat of development. Although Highlands Ranch pointed out that the District has never before retained such experts to review mitigation bank properties for this purpose, there is nothing in the rule that prevents the District from doing so when considering this criterion. The fact that land use considerations do not involve pure "scientific judgment" does not invalidate the analysis since an assessor must use not only "scientific judgment" in the UMAM process, but also "professional judgment." By assuming that a rural residential development was the most likely future use, the District applied a PAF of less than one to every assessment area except W9 (0.5 acres), an existing road and bridge, which reduced the number of credits. After scoring the functional gain associated with the preservation of the wetland assessment areas, the District then scored the functional gain that would be achieved from the proposed enhancement activities in areas W1 through W8 and restoration activities in area W9. To determine the functional gain associated with proposed enhancement or restoration activities, the District scored the "current condition" and the "with mitigation condition" with regard to the three indicators and then applied an appropriate time lag and risk factor to each assessment area. The District did not apply the PAF when it scored the functional gain associated with the enhancement or restoration of an assessment area. Time lag is a measure of how long it will take to achieve the scores given to the indicators in the "with mitigation" condition. The District determined the time lag after considering the activities proposed in a particular assessment area. Fla. Admin. Code R. 62-345.600(1)(d). For example, the time lag assigned to area W1 was 1.92 (which equates to 21 to 25 years) since the native community is Wetland Forested Mixed, and the applicant has proposed supplemental planting with hardwood trees that will need time to grow and develop a canopy and achieve the "with mitigation" conditions. Risk is a measure of uncertainty that the proposed conditions for an assessment area are going to be achieved. This determination was made by the District in accordance with the six factors set forth in Rule 62-345.600(2)(a)-(f). The total functional gain of all of the wetland preservation, enhancement, and restoration activities proposed for the property is 45.76 credits. See District Exhibit 29, p. The number of credits (functional gain) associated with each area was derived by multiplying the relative functional gain for each area by the acreage of the assessment area. The summary table in District Exhibit 29 contains the scores for each of the three relevant indicators and factors (PAF, risk, and time lag) and the functional gain and relative functional gain. These scores and values have been accepted as being the most persuasive on this issue. The District's Part II Evaluation of Upland Areas Under UMAM, upland mitigation assessment areas are scored using only two of the three indicators: location and landscape support and community structure. See Fla. Admin. Code R. 62-345.500(2). Scoring of these indicators must be based on "benefits provided to the fish and wildlife of the associated wetlands or other surface waters, considering the current or anticipated ecological value of those wetlands and other surface waters." Id. Although there are two types of upland communities on the property, for the Part II evaluation of upland areas, the District combined the U1 and U2 assessment areas. The applicant did not combine its two upland areas and contended this action contravenes the UMAM rule. The areas were combined because the District views the primary consideration under the rule to be a determination as to how the uplands as a whole benefit the fish and wildlife of the associated wetlands. The combining of the two areas for assessment purposes was not shown to be unreasonable or inappropriate. Given the configuration and characteristics of the property, the District determined that certain uplands on the property provide greater benefits to the wildlife of the adjacent wetlands than others. Accordingly, the District determined that uplands located within 500 feet of the wetlands provided greater benefits to the fish and wildlife of the associated wetlands than those located more than 500 feet away. Therefore, a further subdivision of the upland areas was made by dividing the combined Part I upland areas (U1 and U2) into two Part II assessment areas, one encompassing the uplands located within 500 feet of the associated wetlands on the property and the second encompassing uplands located more than 500 feet from the associated wetlands on the property. Highlands Ranch criticized this division of the upland areas, contending that a 500-foot division line is arbitrary and that the District has never made a similar division in prior mitigation bank cases. The decision to divide the uplands into areas within 500 feet of the wetlands and more than 500 feet from the wetlands is supported by guidance provided in the UMAM Training Manual. See Petitioner's Exhibit 18. The manual cites a number of studies, including one in neighboring St. Johns County, which indicates that of the approximately 200 wetland- dependent native wildlife species listed, only about 25 percent of the species have spatial habitat requirements that extend more than 500 feet from the wetlands. Id. at p. 89.6 The site's unique characteristics provide further support for the District's decision to divide an upland assessment area in this manner. Approximately sixty percent of the property is uplands, with a greater majority of the uplands more than 500 feet from the adjoining wetlands. Finally, the approach recommended by Highlands Ranch (i.e., no division) would mean that the uplands closest to the wetlands provide the same amount of benefits as those located further away. This produces an unreasonable result, given that the majority of the uplands are more than 500 feet from the wetlands, and some are more than 1,000 feet away. The District further subdivided each of the two Part II upland areas by determining the acreage of "total impact" and of "partial impact" based on the assumption that there would be a rural residential development on the property if the site was not preserved. This was done because the UMAM rule provides that the assessor must evaluate assessment areas that are to be preserved in a "without preservation" scenario. In the "without preservation" scenario, Rule 62-345.500(3)(a) provides that the District shall evaluate the assessment area's functions considering the extent and likelihood of what activities would occur if it were not preserved, the temporary or permanent effects of those activities, and the protection provided by existing easements, restricted covenants or state, federal or local rules, ordinances and regulations. In accordance with the rule, the District determined that a low-density residential equestrian development was the most likely harmful activity that would occur if the property were not preserved. This determination was based on the information provided by Highlands Ranch during the application review process, which included a representation by the applicant that one potential use of the property would be an equestrian type low-density development; a review of aerial photographs; observed activities in the area surrounding the property; review of local ordinances; the County Plan, including the FLUM, and zoning and density regulations; and information and analysis provided to the District by both its expert appraiser and planner. The areas described as "total impact" refer to the acreage of the upland assessment areas that would become impervious surface and would have no functional value if the property were developed as a low-density residential equestrian development. The areas described as "partial impact" refer to the remaining areas of the low-density development where some impacts would occur because the areas would comprise portions of the residents' lots. However, these areas would not result in a complete functional loss and would still have some habitat value for the wildlife utilizing the wetlands on the property proposed for the mitigation bank. To determine the acreage of total impact area, the District identified and reviewed several residential equestrian projects in northeast Florida that it had previously permitted. It then performed an analysis to determine an average acreage of impervious surface associated with these types of developments. Using this approach, it was determined that 35.4 acres of impervious surface would be associated with this type of development on the property if it were not preserved. This acreage was then used to determine the percentage of impervious surface in the 1023.50 acres of uplands would be 3.46 percent. This percentage was applied to the upland assessment areas. The uplands without the proposed conservation easement are anticipated to become impervious surface were assigned a score of zero in the "without preservation" condition for the two indicators applicable to uplands. As impervious surface, these uplands will not provide any community structure functions. Under Rule 62-345.500(2)(a), "when the community structure is scored as 'zero', then the location and landscape support shall also be 'zero.'" In the "with mitigation" condition, these uplands would consist of preserved upland pine forest and long-leaf pine oak communities that have been subjected to pine-plantation silvicultural practices for many years. For this condition, the uplands located greater than 500 feet away from the wetlands were assigned a score of six for community structure and five for location and landscape support. Likewise, the uplands located 500 feet or less away from the wetlands were assigned a score of six for community structure and nine for location and landscape support. The uplands that would be partially impacted if they are not preserved were also scored with regard to the location and landscape support and the community structure indicators. In both the "with mitigation" and the "without preservation" conditions, the District scored the location and landscape support of those uplands located within 500 feet of the associated wetlands as nine and those uplands located greater than 500 feet from the associated wetlands as five. The community structure for those uplands was assigned a score of four in the "without preservation" condition and six in the "with mitigation" condition. The District then scored the enhancement activities proposed for each of those areas and applied a time lag and risk factor to each enhancement area. It assigned the same score of nine in the "current condition" and in the "with mitigation" condition for the location and landscape support indicator for those uplands located within 500 feet or less of the wetlands and a score of five in those two conditions for those uplands located more than 500 feet from the wetlands. The District scored the community structure indicator as six in the "current condition" and as nine in the "with mitigation" or enhanced condition. The "current condition" scores for enhancement of the uplands for both of these indicators reflect that these uplands will have been preserved before they are enhanced. Finally, the District determined that the functional gain of the upland assessment areas associated with the preservation and enhancement activities proposed by Highlands Ranch is 147.80 credits, or 0.15 credit per acre. (In contrast, Highlands Ranch's expert calculated 291.99 credits, or 0.29 credit per acre, for the U1 and U2 areas, almost twice as many as the District.) The scores, including the relevant adjustment factors (PAF, time lag, and risk) are set forth in District Exhibit 29 and are hereby accepted. Highlands Ranch criticized the District's decision to not award any increase in score in the location and landscape support indicator for preservation of the uplands that would be partially impacted in the "without preservation" condition, and the enhancement of the upland assessment areas. Of the eight subdivided upland areas, six had the same score for the without mitigation/without preservation condition and with mitigation condition for the location and landscape support indicator. This resulted in the District awarding zero "lift" (improvement in ecological function provided by the proposed mitigation activities) for improvements in location and landscape support for approximately sixty percent (956.81 acres) of the site. In contrast, Dr. Dennis awarded lift to the uplands primarily because the site is located within the priority one parcel category in the CLIP. The District's determination not to increase the score for the upland assessment areas was appropriate because the focus of the evaluation of uplands under UMAM is the benefits that they provide to the fish and wildlife of the associated wetlands. The preservation of these uplands through a conservation easement and their enhancement will not change the level of protection of wetland functions that they provide due to their location in the landscape. The District considered this level of protection to be significant for uplands located within 500 feet of the wetlands and moderate for uplands located more than 500 feet away from the wetlands, both in the "without preservation" and the "with mitigation" condition. On the other hand, the District recognized that the easement and enhancement activities will result in improvements in community structure and gave credit for these improvements when it scored that indicator for the uplands in the "with mitigation" condition for preservation and then in the "with mitigation" condition for their enhancement. Highlands Ranch's Part II assessment generated more than two-thirds (291.99) of its total requested bank credits (425) from enhancement activities proposed in the uplands. If this assessment were accepted, the amount of credits generated from uplands would be sufficient to offset the destruction of 85 percent (496.2 acres) of the wetlands, including all of the wetlands associated with Boggy Branch Creek and Tiger Branch Creek. Because most of the value of this site comes from the wetlands, with the uplands providing supplemental value, preservation of the uplands cannot be worth more than the wetlands they are protecting. In other words, uplands cannot provide or replace all of the functions that wetlands provide to fish and wildlife. For this reason, the applicant's assessment of uplands is found to produce an unreasonable result. Another significant difference between the parties' scoring is found in the community structure indicator for the upland areas. In its analysis, Highlands Ranch gave a score of three for the community structure indicator of the areas designated as U1. This would mean that the level of function provided by the existing vegetative community to benefit fish and wildlife in the associated wetlands is currently only thirty percent of that provided by the optimal level. (A score of ten is an optimal level of function.) To justify a score as low as four for this indicator, or one point higher than the score assigned by the applicant, the U1 area should have a predominance of the following characteristics: the majority of plant cover is by inappropriate, undesirable plant species, invasive exotic plant species, or other invasive plant species; minimal evidence of regeneration or natural recruitment; atypical age and size distribution of the system; coarse woody debris and the like; poor plant condition; alteration of natural structures or introduction of artificial features; reduction in extent of topographic features; a moderate degree of siltation or algal growth in submerged aquatic plant communities; and only a "moderate" level of support for fish and wildlife. See Fla. Admin. Code R. 62-345.500(6)(c)1.c.I-X. Therefore, under UMAM, a score of four would mean at least a minimal level of support of wetland/surface water functions, while a three would logically mean less than minimal. In scoring the combined U1 and U2 areas for this indicator, the District assigned higher scores, depending on whether the uplands were identified as total or partial impact, and more or less than 500 feet from the wetlands. See District Exhibit 3, pp. 27-32. The greater weight of evidence supports a finding that the current level of support for fish and wildlife is at least minimal, and probably closer to moderate, as reflected in the District's assessment. See, e.g., District Exhibit 4, p. 53. Therefore, the District's assessment on this issue has been accepted. The other contentions raised by Highlands Ranch have been considered and rejected. c. Summary The preponderance of the evidence supports a finding that the UMAM assessment used by the District, rather than the assessment presented by the applicant, should be used for awarding potential banking credits. When the credits for upland assessment areas (147.80) are added to the functional gain credits for the wetlands assessment areas (45.76), the total number of mitigation banking credits to be awarded Highlands Ranch is 193.56.
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 HPiegrhmliatnAd pspRlainccaht'i son No. 4-019-116094-2 authorizing it to construct, implement, and operate a mitigation bank in Clay County and awarding the applicant 193.56 potential mitigation banking credits. DONE AND ENTERED this 26th day of May, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2010.
The Issue The issue is whether Respondent should be terminated from employment with the City of Clearwater (City) for violating City policies as alleged in the City's Termination and Dismissal Notice (Notice) dated July 16, 2015.
Findings Of Fact On February 2, 2009, Mr. Bennett was hired by the Clearwater public utilities department as a water distribution technician I. In April 2015, Mr. Bennett was promoted to a public utilities technician II (Tech II). As a Tech II, Mr. Bennett’s job description included: repairing water leaks, testing backflows, keeping water flowing, and providing services to customers. Additionally, as a Tech II, Mr. Bennett could be called upon by the public water department to respond to after- hours emergency calls, including nights and weekends. On Sunday, April 26, 2015, Mr. Bennett was on-call for the public water department. A city customer called and reported a water leak at his residence. Mr. Bennett was dispatched to the customer’s residence. Mr. Bennett met the customer and cleared the area around the water meter. Mr. Bennett located the water leak outside the water meter box. Mr. Bennett told the customer that a plumber would charge anywhere from $100 to $1,000 to repair the leak because the service call was on a weekend. Mr. Bennett told the customer he would repair the leak for $300. Further, Mr. Bennett provided the customer with a cell phone number so that if the repair was not satisfactory or there was more work to be done, the customer could contact Mr. Bennett. Mr. Bennett repaired the leak using plumbing supplies from the public utility department truck. After the work was completed, the customer gave Mr. Bennett a personal check for $300. There is no dispute that Mr. Bennett cashed the check on April 27, 2015. After several days the customer texted Mr. Bennett that the cost for the repair was too high. Mr. Bennett did not respond to the text. Mr. Bennett completed a “City of Clearwater Water Leak Service Order” on the repair. The work order reflected that Mr. Bennett received the service call at 7:25 p.m., and he returned home at 9:10 p.m. Mr. Bennett recorded that he found a water leak "in box @ customer's side, repaired leak." Several weeks later, when the customer received his next city water bill, he called the city customer service center to complain. The customer expressed that, after checking with friends and looking at the cost of plumbing parts, the $300 he paid Mr. Bennett was too high for the repair. The customer provided a copy of his cancelled check to the service center. The Clearwater public utilities department does not charge customers for repairs. There is a city policy that the city will repair water leaks within the meter box, but that water leaks outside the meter box are the responsibility of the customer. Following the complaint, the city conducted an investigation into the customer’s water leak repair. Glenn Daniel, Mr. Bennett's supervisor, went to the customer’s residence to examine the area around the water meter. Mr. Daniel observed several new plumbing parts installed outside the meter box. Based on the type and condition of the newly installed pipes, Mr. Daniels determined that the new pipes were from the City's inventory. Mr. Bennett admitted that he made the repair to the water pipe. He proceeded to testify that he felt “funny” about taking and cashing the $300 check. Mr. Bennett claimed he returned the $300, in cash at 2 a.m. the next morning, by placing the cash under the customer’s doormat. Mr. Bennett failed to contact the customer to tell him the money was there. When the customer was asked to look for the money, it was not under the doormat. Mr. Bennett's testimony lacks candor and is not credible. Mr. Bennett also claimed that the telephone number the customer used to text him was not his telephone number. Sergeant Ramon Cosme, of the Clearwater police department, conducted an investigation of the alleged theft of city property. In the course of his investigation, Sergeant Cosme identified the telephone number as being associated to Mr. Bennett. Mr. Bennett was paid by the City for the overtime he worked on Sunday, April 26, 2015. The City has adopted a Performance and Behavior Management Program (PBMP) manual that applies to all employees and contains Citywide, Integrity, and Departmental standards of conduct. Also, pursuant to the Code of Ordinances (Code), the Civil Service Board has adopted a set of rules and regulations that apply to all positions in civil service, including Mr. Bennett's position. Among other things, those regulations set forth additional grounds for disciplining an employee. Each employee is required to review the policies and procedures documents and to acknowledge the understanding of those policies. Mr. Bennett acknowledged being advised about those policies during his employment with the City. Civil Service Board regulations allow an employee to present the circumstances which led to his discipline and other mitigating evidence. See Ch. 13, § 8, Rules and Regs. Pursuant to that regulation, Mr. Bennett requested a disciplinary determination meeting with the Department of Human Resources, which was conducted on July 10, 2015. Mr. Bennett attended the meeting with his union representative. After considering Mr. Bennett's explanation, David Porter,2/ on behalf of the Public Utilities Department, recommended that Mr. Bennett’s employment be terminated. On July 16, 2015, the City Manager notified Mr. Bennett that his employment was being terminated effective the following day, July 17, 2015. The evidence shows that Mr. Bennett repaired a water meter leak on the customer’s side of the meter by using city property, and he accepted $300 for the repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the City of Clearwater enter a final order terminating Mr. Bennett’s employment. DONE AND ENTERED this 13th day of April, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 13th day of April, 2016.
The Issue Whether the costs incurred by the Department of Environmental Protection, Bureau of Emergency Response (Department) in connection with its response to Incident Number 95-SE-0371 may be recovered from Petitioner pursuant to Chapter 376, Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376, Florida Statutes. At all times material to the instant case, Petitioner has been the owner of a fenced and gated parcel of land, approximately one acre in size, located at 960 Old South Dixie Highway in an industrial area of Jupiter, Florida (Petitioner's Property or Property). Before the incident which is the subject of the instant proceeding (Incident), Petitioner had used the Property to store equipment used in his asphalt paving business. Petitioner removed the equipment from the property in December of 1989, when he moved his business operations to a new location in west Jupiter. Underground tanks that Petitioner had installed on the Property to store diesel fuel used in his asphalt paving business were also removed when Petitioner's business relocated. Groundwater tests were conducted in May of 1990, after the tanks were removed. The results of these tests revealed the absence of any pollutants. Following the relocation of his business to west Jupiter, Petitioner began renting the Property to Schmidt's Auto Body (Schmidt's), an automobile repair business located next to the Property. The rental agreement (which was not in writing), at Petitioner's insistence, included the requirement that Schmidt's maintain the Property and keep it clean. Schmidt's used the Property to store vehicles that needed to be repaired or towed elsewhere. To allow it easier access to Petitioner's Property, Schmidt's built a gate in the fence separating its business from the Property. After Petitioner relinquished possession of the Property to Schmidt's, the Property was used by others, acting without Petitioner's approval or authorization, as a dumping ground for abandoned personal property. Petitioner is now, and has been at all times material to the instant case, legally blind and in failing health. Due to his blindness and poor health, Petitioner had been, prior to the Incident (and he has remained), unable to personally inspect the Property to ascertain Schmidt's compliance with the rental agreement's requirement that it maintain the Property and keep it clean. Petitioner's wife passed by the Property each month when she visited Schmidt's to collect rent for Petitioner, but she did not closely inspect the Property on these visits. There is no evidence that Petitioner was made aware, by his wife or anyone else, that his Property (which was fenced) was being used as a dumping ground. On September 8, 1995, the day of the Incident, the Jupiter area experienced an unusually heavy rain event and resultant flooding and ponding of water in some spots, including locations on and around Petitioner's Property. Depressions in portions of Petitioner's Property contained standing water, although the entire property was not flooded. At approximately 10:30 a.m. on September 8, 1995, Ann Meador, an Emergency Response Coordinator with the Department, received a report (from Palm Beach County Risk Management) of two 55-gallon drums leaking asphalt sealant on Petitioner's Property. Meador was initially told that the "situation was being handled" by Palm Beach County Risk Management, but she was later advised otherwise. Meador arrived on the scene at approximately 3:00 p.m. that same day (September 8, 1995) and served as the Department's on-scene coordinator. Upon arriving on the scene, Meador observed two 55-gallon drums which had unsecured lids and were rusted and in otherwise poor condition. One of the drums was labelled "asphalt sealant.“ (Although Petitioner was in the asphalt paving business, he did not use asphalt sealant for any of the work he performed.) Petitioner was not in any way responsible for the drums being on the Property. In fact, at no time prior to the Incident, did he even know that the drums were there. The heavy rains had caused the contents of the drums (product) to overflow. Approximately 85 gallons of product, mixed with water, had spilled onto the ground. Stormwater runoff had carried some of the product to a depression in an unpaved road adjacent to the Property and near a storm drain. Meador reasonably believed that the drums and the spilled product should be removed immediately to avoid the possibility that, with additional rainfall, the product would spread to other areas. After having learned that Petitioner was the owner of the property on which the drums were located and having obtained his telephone number, Meador called the number to inform Petitioner of the leaking drums on his Property. The person to whom Meador spoke identified himself as Petitioner. He told Meador, upon being advised that the drums and product needed to be removed from the Property, that he was not "going to do anything." Following this telephone conversation, Meador hired OHM Remediation Services, Inc. (OHM), a qualified emergency response contractor with whom the Department had a contract, to remove the drums and product (as well as the water and soil the product had contaminated) from the Property and to properly dispose of these items. OHM, in turn, contracted with Magnum Environmental Services (Magnum) to perform these services (as a subcontractor). Magnum personnel responded to the scene and performed these removal and disposal services. To determine the most appropriate means of disposal, samples of the product were collected and analyzed. The analysis revealed that the product was a petroleum derivative. Magnum properly disposed of the drums based upon the results of its analysis. The Department paid OHM $12,033.03 from the Water Quality Assurance Trust Fund for the services Magnum performed (as OHM's subcontractor). In requesting that these services be performed and in paying $12,033.03 for the performance of these services, the Department acted reasonably and prudently. The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $461.91 in connection with its response to the Incident. The total amount the Department paid from the Water Quality Assurance Trust Fund to have the leaking drums and product (as well as the water and soil the product had contaminated) properly removed from Petitioner's Property and disposed of was $12,497.94. 2/ The Department is requesting that Petitioner reimburse the Department for these costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department finding that Petitioner is not liable for the costs the Department incurred in responding to Incident Number 95-SE-0371. DONE AND ENTERED this 28th day of August, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1998.
Findings Of Fact On September 13, 1977, SFWMD advised Coquina by letter that "[a]t its September 8, 1977 meeting the Governing Board of this District gave Conceptual Approval of [Coquina's] surface water management plan . . . subject to the four special conditions found on page 15 of the District's staff report. . . [and an] additional special condition Joint exhibit No. 5. The first special condition found on page 15 of the District's staff report requires that complete construction plans be submitted, including "supporting calculations for all design elements not already submitted and any other plans necessary to assure adherence to the concept plan." Joint exhibit No. 2, page 15. The plan approved by SFWMD is designed to lower the water table in a 22 square mile area northwest of Lake Okeechobee in Okeechobee County. In its natural state, the land lies under water for part of the year. The corporate owner of the land has plans to subdivide it and sell residential lots, beginning with the four contiguous sections as to which the present application for a construction permit has been made. These four sections (phase I) lie north and south of each other in the western portion of the larger tract. The proposed construction would consist of digging ditches or swales paralleling existing and planned roads; building intersecting collector swales running north and south; installing ditch checks where swales intersect; dredging a retention pond into which the collector swales could empty at the south end of the phase I tract; digging an outfill ditch to channel water leaving the retention area for Ash Slough; and erecting a weir, between the retention area and the slough. Culverts through the weir would be equipped "with standard flash board risers in which the water level is regulated by stop logs which can be added or removed," Coquina's exhibit No. 1, p. 10, and the culverts would ordinarily serve as the route by which water from the retention area would reach Ash Slough. Under extremely wet conditions, however, water from the retention area could overflow the weir. The intervening petitioners own land on Ash Slough downstream from the retention area and adjacent to the southern boundary of the phase I tract. No formal studies of the likely effects of the proposed construction downstream were undertaken by Coquina or by SFWMD in evaluating Coquina's application. The surface water management plan given conceptual approval by SFWMD provides: The quantity of runoff flowing to the south through existing sloughs will be controlled to protect the downstream areas against flooding whereas at the present there is no control. The amount flowing to the existing sloughs to the south during the 25 yr. design storm will be limited to the amount flowing to those sloughs before any development takes place. Lesser storms will be more completely retained on the property. Controlled discharge will be provided from retention areas to the existing sloughs for the purpose of nourishing these streams. Coquina's exhibit No. 1, p. 1. (Emphasis supplied) Since no records of the amount of discharge to Ash Slough "before any development" are in existence, certain assumptions and estimates were made. One such assumption on which the application for construction permit proceeds is that the phase I tract all drains to the south, in its present state. In fact, some of the water now leaving the phase I tract travels in a westerly direction and never enters Ash Slough, at least under some weather conditions. If the proposed construction is accomplished, the phase I tract would all drain to the south through Ash Slough. As things now stand, a significant amount of water leaves the phase I tract by evapotranspiration. If the water table were lowered two and a half feet, which is what Coquina proposes, less water would leave the phase I tract by evapotranspiration, leaving more water to flow over the ground. In estimating the quantity of the anticipated discharge to Ash Slough, if the proposed construction takes place, it is necessary to take into account drainage onto the phase I tract from adjoining lands. Coquina has failed to furnish plans and supporting calculations sufficient to insure that the proposed construction will not increase the amount of flow to Ash Slough during the 25 year design storm. Increased flow to Ash Slough would aggravate downstream landowners' drainage problems, unless the slough could handle the additional flow, a question which the application does not address. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 34O So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny Coquina's application for construction permit. DONE and ENTERED this 14th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Paragraph one of intervening Bass petitioners' proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not demonstrate that downstream landowners would in fact be harmed. Paragraphs two, three, four, five, six and seven of intervening Bass petitioners' proposed findings of fact have been adopted, in substance, insofar as relevant. Paragraph one of respondent Coquina's proposed findings of fact has been adopted, in substance, insofar as relevant, except for the date of the application. Paragraphs two, three, four, five, six, seven, eight, nine and thirteen of respondent Coquina's proposed findings of fact have been adopted in substance, insofar as relevant. Paragraph ten of respondent Coquina's proposed findings of fact stated a conclusion of law, in part. While "testimony was presented that the construction of Phase I would have no substantial adverse affect [sic] on surrounding properties," the evidence as a whole did not establish this fact. Paragraphs eleven and twelve of respondent Coquina's proposed findings of fact have not been adopted because they were not established by the evidence, except for subparagraph eleven (f), which was proven. COPIES FURNISHED: John Henry Wheeler, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Robert Birenbaum, President Viking Communities Corporation (Coquina Water Management District) 123 Northeast 70 Street Miami, Florida 33138 Kyle S. Van Landingham, Esquire County Attorney Okeechobee County Courthouse Okeechobee, Florida 33472 Andrew B. Jackson, Esquire J.C. Bass & Bass Ranch, Inc. Post Office Box 488 Lake Placid, Florida 33852 Emerson Allsworth, Esquire 1177 Southeast Third Avenue Ft. Lauderdale, Florida 33316 Mr. Bob Wittenberg Division of Florida Land Sales and Condominiums The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Dr. Patrick M. McCaffrey Kissimmee Coordinating Council 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. George Stansbury Central Florida Regional Planning Council Post Office Box 2089 Bartow, Florida 33830
The Issue The issues in this case are: 1) whether the Petitioner, Southport Ranch, LLC (Petitioner), is a substantially affected person with standing to challenge the Respondent, South Florida Water Management District’s (District) intent to issue Environmental Resource Permit (Mitigation Banking) Number 49-00007-M to the Respondents, D.R. Horton, Inc., and Osceola County (Applicants); and 2) the number of potential mitigation bank credits that the District should award to the Applicants.
Findings Of Fact The Parties The District is a government entity created pursuant to chapter 25270 of the 1949 Laws of Florida, and operates as a multi-purpose water management district. The District has the authority and duty to exercise regulatory jurisdiction over the Twin Oaks Mitigation Bank (the Project) under the provisions of part IV, chapter 373, Florida Statutes, and Titles 40E and 62 of the Florida Administrative Code. The Respondent, D.R. Horton, Inc. (D.R. Horton), is a Florida corporation and the owner of two of three parcels that comprise the Project. D.R. Horton is the largest homebuilder in the Unites States with a large full-time staff in Florida and around the country. The Respondent, Osceola County, is a political subdivision of the State of Florida and the owner of one of three parcels that comprise the Project. The Petitioner, Southport Ranch, LLC, is a Florida limited liability corporation that owns 7,000 acres of real property located within the Lake Tohopekaliga (Lake Toho), Lake Gentry, and Reedy Creek drainage basins in Osceola County. Petitioner’s Substantial Interests The real property owned and managed by the Petitioner is called Southport Ranch (Ranch). The Ranch straddles three drainage basins, which are sub-basins within the Kissimmee River Basin. A small portion of the Ranch touches Lake Toho and the eastern boundary of the Ranch extends to the centerline of the C-35 Canal. Water flows south from Lake Toho through the C-35 Canal and into Ranch property through culverts. Extensive wetland resources are located throughout the Ranch, including forested, freshwater, and herbaceous wetlands. The Ranch is populated by a wide array of aquatic and wetland dependent animal species, including several species that are listed as threatened or endangered by the state or federal government. The Petitioner is owned by a series of trusts established by George Andrew Kelley (Kelley) who passed away in 2014. Kelley was a fourth-generation cattle rancher. Gary Lee manages the Ranch operations and is also the trustee of the George Andrew Kelley Family Trust. Mr. Lee testified that the Petitioner’s primary management objective, consistent with the direction of Kelley prior to his death, is preservation and conservation. This includes preserving and protecting existing wetland habitat on the Ranch. Historically, the primary land use on the Ranch was cattle ranching and that activity continues on a portion of the Ranch property. The other land use is the Southport Ranch Mitigation Bank (SRMB), a wetland mitigation bank permitted by the District in 2010. The SRMB is operated by a separate company in partnership with the Petitioner, and they are co- permittees on the mitigation bank permit. Mr. Lee testified to certain concerns with the Project and the number of proposed mitigation credits. Mainly that, if the Project does not achieve success as a mitigation bank, it could be detrimental to existing wetlands, such as those on the Ranch, which support aquatic and avian species. In addition, there could be adverse regional impact in the form of a net loss of wetlands. Mr. Lee considers the Ranch to be a “very[,] very[,] very unique piece of property” and “we’re trying to save it.” The Petitioner’s expert, Carl Salafrio, testified that utilization of a mitigation credit or credits that do not completely offset the loss of wetland function caused by a permitted wetland impact within the Kissimmee River watershed or the three sub-basins in which the Ranch property is located, would adversely impact aquatic and wetland species present on the Ranch. The Project and Vicinity The Applicants propose to construct and operate the Project along the northeast side of Lake Toho in Osceola County. The Project consists of three mitigation areas (MA) with a total of 747.91 acres. MA1 is the northern parcel and comprises 202.94 acres that are currently drained by an off-site pump that pushes water to the west into Lake Toho. MA1 is bounded on the north by the Partin Canal, to the west by Kings Highway, and to the east by Neptune Road. D.R. Horton owns MA1. An existing conservation easement (CE) encompasses 45.26 acres of MA1. The CE is associated with the prior issuance of an Environmental Resource Permit (ERP) for Phase 1A of a residential development known as the Toho Preserve (now known as Kindred). MA2 is south of MA1 and the southwestern region of MA2 abuts the northeastern shore of Lake Toho. MA2 is bounded to the east by Macy Island Road. MA2 comprises 283.82 acres that are currently drained to the south by a pump into Lake Toho. MA2 is owned by D.R. Horton. MA3 is east of MA2 and comprises 261.15 acres that drain through a culvert under Macy Island Road into MA2 and south into Lake Toho. MA3 is owned by Osceola County and the County will be the sole user of the mitigation credits generated by MA3. MA3 is bounded on the east by the C-31 canal and to the south by a park owned by Osceola County. The service area for the mitigation bank consists of the Lake Toho, Reedy Creek, Lake Gentry, Lake Hart, Shingle Creek, Boggy Creek, Lake Hatchineha, and Lake Kissimmee drainage basins within the jurisdiction of the District. The service area also includes portions of the Southern St. Johns River basin, which is within the jurisdictional boundary of the Southwest Florida Water Management District, and additional areas within the boundaries of the St. Johns River Water Management District. The Project site was historically littoral areas of Lake Toho that were separated from the Lake by drainage modifications, such as those made in the 1950s by the Central and South Florida Flood Control Project. The drainage modifications included features, such as the C-31 Canal, the Partin Canal, dikes, ditches, pumps, culverts and roads. In particular, the large agricultural pumps at MA1 and MA2 drain the mitigation areas and pushes water into Lake Toho to maintain the acreages as pasture for cattle grazing. The Applicants propose to construct the Project through a combination of wetland restoration, wetland and upland enhancement, conservation easements, and implementation of hydrologic improvements. The Project will increase hydroperiods in targeted wetlands to mimic the historic hydrologic regime and restore natural sheet flow patterns that existed prior to the drainage modifications. Rainfall and runoff from adjacent developments will serve to hydrate the three mitigation areas. Successful restoration of the natural hydroperiods will promote the growth and maintenance of desired wetland vegetation communities in the mitigation bank. D.R. Horton will manage and operate the Project until it meets the success criteria documented in the permit. Once the Project achieves success, Osceola County will operate and maintain the Project in perpetuity. Osceola County has implemented an Environmental Land Conservation program (SAVE Ordinance) designed to acquire and manage, in perpetuity, conservation lands. Proposed Enhancement and Restoration The Project would restore the upland and wetland habitats historically a part of, and hydrologically connected to, Lake Toho. The mitigation activities will consist of various methods for the targeted community types. These include hydrologic enhancement and restoration, regrading wetland areas and ditches to match natural grades, prescriptive burning, elimination of nuisance and exotic plant species, and vegetation enhancement and restoration. The Project would eliminate incompatible land uses within the mitigation areas, such as cattle grazing, hay production, and sod farming. The Project would reestablish wetland community structures and functions similar to the natural, historic wetland communities within the mitigation service area. The target community types and required hydrologic enhancement were also identified by the Applicants’ expert, John Lesman. Mr. Lesman testified that he consulted resources, such as Ecosystems of Florida and the Florida Natural Areas Inventory. For example, portions of the upland pasture areas would be restored to slough marsh and wet prairie communities by increasing the elevation and duration of seasonal high water levels. Planting is proposed in upland enhancement areas because of a lack of viable seed source for natural recruitment of native upland species. For the wetland enhancement and restoration areas, existing wetland vegetation is a viable seed source to facilitate natural recruitment. Mr. Lesman testified that natural recruitment is a generally-accepted means to establish wetland plant species. The Petitioner’s expert, Beverly Birkitt, questioned whether more plantings should be required. However, if natural recruitment is not successful, the Applicants would conduct supplemental plantings in order to meet vegetation success criteria. The Project would utilize herbicidal and mechanical control of nuisance and exotic vegetation consistent with the Nuisance and Exotic Vegetation Control Plan. Prescribed burns are also used to control exotic and nuisance species in pyrogenic communities within mitigation banks. Ms. Birkitt opined that prescribed burns should not occur adjacent to existing and proposed residential development. However, prescribed burns are a common activity carried out by licensed professionals using methods established and approved by the Florida Forest Service. The Prescribed Burning Management Plan requires safeguards when there is a wildland-urban interface. Safeguards include permanent fire lines, educational outreach to adjacent residential communities, and local partnerships with local fire rescue agencies, the Florida Forest Service, and Osceola County staff. The Project’s mitigation activities would restore habitats for listed species, aquatic-dependent and wetland- dependent species, and a variety of other wildlife. Lake Toho and surrounding areas serve as a primary foraging and nesting refuge for the everglades snail kite. It is also habitat for various endangered and threatened species, such as the whooping crane, limpkin, snowy egret, white ibis, little blue heron, tricolored heron, and bald eagle. The Applicants modified the application to include a 25-foot buffer along specified portions of the perimeter areas of MA1, MA2 and MA3. Those specified portions have adjacent development or the potential for adjacent development, which is a risk for all mitigation banks. The Applicants also removed the acreage within the 25-foot buffer areas from consideration to generate mitigation credits. However, that acreage would still be enhanced or restored as part of the Project’s mitigation activities. A 25-foot buffer is not proposed for those areas that have existing physical buffers or legal restrictions that preclude future development. Proposed Hydrologic Improvements The Project encompasses numerous activities designed to restore hydrologic conditions at the mitigation areas including removal of certain drainage features and structures. Surface water from MA1 will flow through a broad crested weir, a series of pipes and a drop inlet with operable boards to the Partin Canal, which is directly connected to Lake Toho. The existing culvert under Kings Highway that currently allows MA1 to drain to the off-site pump would be plugged with concrete to allow hydroperiod restoration. The pump at the south end of MA2 that currently drains MA2 and MA3 would be removed and replaced with a broad crested weir, a series of pipes and a drop inlet with operable boards that will outfall to Lake Toho. The boards are light-weight aluminum and are easily installed or removed by a single individual. The weir structure would detain water in MA2 and MA3 causing re-hydration of these historic wetland systems. The installations of the control structures within MA1 and MA2 would reestablish the hydrologic connections between Lake Toho and MA1, MA2 and MA3. To properly assess and implement the hydrologic improvements, the Applicants developed a hydrologic model. The primary factors considered in order to model the proposed condition annual hydrograph were annual rainfall and evaporation from the water body areas. Sixteen years of average annual data for both rainfall and evaporation were obtained from the University of Florida – Institute of Food and Animal Sciences Department, Lake Alfred Experiment Station. The rainfall data was averaged to develop average daily rainfall totals for a hypothetical year. This rainfall data was entered into the Advanced ICPR model for generation of annual runoff hydrographs entering each of the on-site wetlands. Advanced ICPR is an industry standard model for stormwater management systems in large basins, routinely accepted by the District for permit applications. The water levels of Lake Toho are managed on a lake regulation schedule operated by the District. Lake Toho water levels influence hydrology in and around the Project site. The water levels of Lake Toho were factored into the Applicants’ hydrologic model. The Applicants used a 10-year average of water levels within Lake Toho. Surface water elevation data for Lake Toho was obtained from data provided by the District for the years 2001 through 2011. For the purpose of modeling the average annual conditions, the annual data was averaged with the 2004 data being excluded. The Petitioner’s expert engineer, Stuart Cullen, opined that the Lake Toho regulation schedule should have been considered instead of actual water levels. However, the evidence showed that the water levels frequently varied from the regulation schedule. Thus, the use of actual water levels within Lake Toho for modeling purposes yielded more accurate results. The Applicants’ model demonstrated post-development results using data for the existing conditions of the Project site. Mr. Cullen opined that the existing conditions used for this permit application should have been the “pumps off” scenario provided in the Conceptual ERP for the Kindred project because the District referenced the Kindred Conceptual ERP in the permit documents for this Project. However, Mr. Boyd, who was the engineer for the Kindred Conceptual ERP, testified that it included a pumps-off scenario only to show that even if the pumps failed, the Kindred development would not flood. This is a “worst case scenario” demonstration and is different than existing conditions, which are the conditions as they exist on the site today, not how they are permitted to exist in the future. Mr. Boyd explained that he listed the “pumps on” scenario as the existing condition because the off-site pump, which is not controlled by the Applicants, currently runs as needed to keep the property drained and completely dry. When the Applicants block the culvert connected to the off-site pump as part of the Project’s proposed activities, the pump will no longer affect the property. This is the “pumps off” scenario, which in this instance, only occurs post-development. Hydrologic modeling data and results demonstrated that water levels within the Project would mimic a traditional wet season/dry season fluctuation as opposed to the inverse hydroperiod of Lake Toho. The operable water control structures would be modified on a seasonal basis. In the dry season, the boards would be removed to lower the water levels, mimicking natural dry season water levels. Conversely, the boards would be in place during the wet season to raise the water levels in the wetlands, thereby creating natural wet season water levels. The model demonstrates that the system design would immediately provide the hydrologic enhancement necessary to meet the Applicants’ ecological goals. Uniform Mitigation Assessment Method The Uniform Mitigation Assessment Method (UMAM) provides a standardized wetland assessment methodology that may be applied across community types. UMAM is used to calculate the credits that may be awarded to a mitigation bank. UMAM involves a two-part analysis. Part I is a qualitative characterization of the property by assessment areas. An assessment area is all or part of a mitigation site that is sufficiently homogeneous in character or mitigation benefits to be assessed as a single unit. See Fla. Admin. Code R. 62-345.200(1). Part II utilizes the scoring criteria established under the rules to evaluate each assessment area’s “current” condition (prior to the mitigation) to its “with mitigation” condition. The resulting difference represents the improvement of ecological value or the ecological lift, referred to in the rule as the “delta.” See Fla. Admin. Code R. 62- 345.500. Ms. Birkitt agreed with almost all the Applicants’ “current” condition scores and also with all of the Applicants’ “with mitigation” condition scores related to upland enhancement. Ms. Birkitt focused on the “with mitigation” scores for wetland enhancement and wetland restoration. Ms. Birkitt testified that the ecological lift reflected by the UMAM numbers for the three wetland function indicators could not be achieved. The major reason given by Ms. Birkitt was the Applicants’ inability to achieve the necessary wet season water levels in the mitigation areas. Other reasons included the potential for development adjacent to the mitigation areas, the limited benefit attributed to prescribed burns, and the lack of planting in certain assessment areas. Part II scoring under the UMAM rule has three categories of indicators of wetland function: location and landscape support, water environment, and community structure. For location and landscape support, the value of functions provided by mitigation assessment areas are influenced by the landscape position of the assessment area, its relationship with adjacent and regional surrounding areas, including interconnectivity that benefits wildlife. For water environment, the quantity of water in an assessment area, including the timing, frequency, depth and duration of the inundation or saturation, and flow characteristics are considered. Hydrologic requirements and hydrologic alterations are evaluated to determine the effect of these conditions on the functions performed by the assessment area. For community structure, each mitigation assessment area is evaluated with regard to its characteristic community structure, including vegetation and habitat. By way of example, a score of 10 means the mitigation assessment area, based on reasonable scientific judgment, is capable of reaching 100 percent of beneficial ecological functions. A score of 5 means, that the assessment area is limited in its ability to perform beneficial ecological functions to 50 percent of the optimal value. See Fla. Admin. Code R. 62-345.500. The Petitioner’s experts identified the main hydrologic issue as the Applicants’ inability to achieve the necessary wet season water levels in the mitigation areas. As discussed above, the Applicants demonstrated that the system design supports the hydrologic environment necessary to provide functional gains consistent with the UMAM scoring. The potential for development would not decrease the value of functions gained by the enhancement and restoration activities. The 25-foot buffer around the mitigation areas adds an additional layer of protection and any future developments must address potential impacts to the Project before obtaining a construction permit. The important role of prescribed burns in mitigation banks is addressed above. Any necessary supplemental plantings would be carried out by the Applicants in accordance with the vegetation success criteria. Ms. Birkitt also testified that the Applicants’ “with mitigation” condition score for approximately 45 acres in MA1 is not appropriate due to the existing conservation easement and its requirements. As explained below, the Applicants took this into account in the “current” condition score (i.e. “without mitigation). In addition, the Project will provide hydrologic enhancement that is not currently provided through the conservation easement. The Project’s success criteria require a lower percentage of nuisance and exotic vegetation, which increases plant cover of appropriate and desirable species. Also, the Applicants will provide prescribed fire and wildlife management for all communities. Time Lag and Risk The time lag associated with mitigation is the period of time between when the functions are lost at an impact site and when the site has achieved the outcome scored in Part II of UMAM. See Fla. Admin. Code R. 62-345.600. There is no time lag if the mitigation fully offsets the anticipated impacts prior to or at the time of the impacts. A score of one is appropriate for activity-based releases that will occur in less than one year. Ms. Birkitt testified that the Applicants should have applied a time lag score greater than one to the initial and activity-based releases because these activities do not provide a functional gain and, therefore, the credits released will not actually offset any impacts. However, the applicable rule applies a time lag score of one (T-factor of 1) to activities that reach success within one year. The evidence shows that the initial and activity-based releases will occur in less than one year. Any amount of risk above de minimus reduces the ecological value of the mitigation assessment area. A score of one would most often be applied to mitigation conducted in an ecologically viable landscape and deemed successful or clearly trending towards success prior to impacts. Ms. Birkitt admitted that placing the Project site under a conservation easement and installing the hydrologic improvements should benefit the Project’s hydrology, but opined that no benefit would actually occur. As discussed above, the hydrologic improvements are designed to provide an instantaneous and clear trend towards success. Mitigation Credits The Mitigation Bank Permit proposes to authorize 388.13 wetland mitigation credits. D.R. Horton would receive 99.56 credits for MA1 and 150.92 credits for MA2. Osceola County would receive 137.65 credits for MA3. The Applicants evaluated the quality of the wetlands by performing the functional assessment of the Project site in the “current” condition and then the functional assessment of the Project site in the “with mitigation” condition. This evaluation method yielded the quality of the restoration and enhancement. The Applicants further evaluated the resulting quality against the total acreage for the Project. In total, the Applicants propose restoring 183.18 acres of wetlands and enhancing 542.52 acres of wetlands and associated uplands. It is “exceptional” and “unique” to have so much wetland restoration in a mitigation bank project. The Applicants recognized that the District previously issued a permit requiring a conservation easement on approximately 45 acres in MA1. The proposed success criteria from that preservation were taken into account in the “current” condition score for that assessment area. Osceola County acquired MA3 with funds through the land conservation program established by its SAVE Ordinance. The SAVE Ordinance places minor limits on the area. According to Osceola County’s Parks and Public Lands Director, Robert Mindick, the County’s management plans and the County’s SAVE Ordinance do not create the same land restrictions as a conversation easement. Nonetheless, the Applicants effectively treated the SAVE Ordinance as a conservation easement when assessing the UMAM scores for MA3. This was a more conservative approach. Credit Releases The Project would receive a 20 percent credit release upon recordation of conservation easements and providing the financial assurances required by the Permit. This initial release is a generally accepted practice, is considered a reasonable approach and would occur in less than one year. The Project would receive a 15 percent credit release based on successful construction and implementation of the hydrologic improvements. This activity-based release is generally accepted, is considered a reasonable approach, and would occur in less than one year. The remainder of the mitigation credits would only be released upon the Project attaining full success. The Project is structured so that 65 percent of its credits cannot be released until attaining full success. This structure is atypical, but puts the burden on the Applicants to perform in order to realize 65 percent of its credits. The Credit Release Schedule is reasonable and consistent with applicable rule criteria. Mitigation credits generated by MA3 may only be used by Osceola County in conformance with the limitations imposed by section 373.414, Florida Statutes. The ledger for mitigation credits will differentiate between MA1 and MA2 and MA3. Attorney’s Fees The Petitioner did not participate in this proceeding for an improper purpose as defined in section 120.595(1), Florida Statutes. As found in paragraphs 6 and 8 above, the Petitioner’s concerns were not purely economic as alleged by D.R. Horton. The Petitioner’s pleadings, starting with its Petition and Amended Petition, were not interposed for an improper purpose as defined in section 120.569(2)(e). Mere co-ownership of SRMB by the Petitioner does not overcome the findings in paragraphs 6, 8 and 9 above, and does not prove an improper or frivolous purpose. The preponderance of the evidence showed that the Petition and Amended Petition were filed to advance legitimate environmental concerns. The Petitioner’s Amended Petition was not interposed for a frivolous purpose as defined in section 57.105, Florida Statutes. Mere co-ownership of SRMB by the Petitioner does not overcome the findings in paragraphs 4 through 9 above and does not prove that the pleading was frivolous. The preponderance of the evidence showed that the Petition and Amended Petition were filed to advance legitimate environmental concerns. Ultimate Findings The Applicants presented a prima facie case demonstrating compliance with all applicable permitting criteria for the Mitigation Banking Permit. The Petitioner did not prove its case in opposition by a preponderance of the competent substantial evidence. However, the Petitioner did not participate in this proceeding for an improper or frivolous purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the South Florida Water Management District enter a final order approving the issuance of Mitigation Bank Permit Number 49-00007-M, as modified, subject to the conditions set forth in the Staff Report; and ORDERED that D.R. Horton’s request for reasonable attorney’s fees and costs under sections 57.105, 120.595, and 120.569, Florida Statutes, is denied. DONE AND ENTERED this 10th day of May, 2018, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 10th day of May, 2018. COPIES FURNISHED: Susan Roeder Martin, Esquire South Florida Water Management District Mail Stop Code 1410 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) Wayne E. Flowers, Esquire Lewis, Longman & Walker, P.A. Suite 150 245 Riverside Avenue Jacksonville, Florida 32256 (eServed) Frank M. Townsend, Esquire Osceola County Attorney's Office Suite 4700 1 Courthouse Square Kissimmee, Florida 34741 (eServed) Shannon Marie Charles, Esquire Osceola County Attorney's Office 1 Courthouse Square Kissimmee, Florida 34741 (eServed) Julia G. Lomonico, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) Maricruz R. Fincher, Esquire South Florida Water Management District Mail Stop Code 1410 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) Bridgette Nicole Thornton, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) John W. Bizanes, Esquire Nason, Yeager, Gerson, White & Lioce, P.A. Suite 210 750 Park of Commerce Boulevard Boca Raton, Florida 33487 (eServed) John J. Fumero, Esquire Nason Yeager Gerson White & Lioce, P.A. 750 Park of Commerce Boulevard, Suite 210 Boca Raton, Florida 33487 (eServed) Thomas F. Mullin, Esquire Nason Yeager Gerson White & Lioce, P.A. Suite 210 750 Park of Commerce Boulevard Boca Raton, Florida 33487 (eServed) Ernest Marks, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Brian Accardo, General Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed)
The Issue The issue is whether Respondent, Ben A. Leasure, should have a $3,000.00 administrative penalty imposed, take corrective action, and pay investigative costs for allegedly illegally filling 0.17 acres of wetlands contiguous with the Withlacoochee River (River), a Class III water, on land located in unincorporated Hernando County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent is the owner of an approximate 5-acre parcel of land located at the intersection of Olivet Drive and State Road 50 (5345 Olivet Drive) in unincorporated Hernando County, Florida. The property is also known as Parcel Identification Number R09-123-21-1110-00J0-0010. In broader geographic terms, the property lies just east of Interstate 75, west of U.S. Highway 301, and just west-southwest of Ridge Manor, a small community in Hernando County. The western boundary of the parcel is approximately 500 feet east of the River, a Class III Outstanding Florida Waterbody (OWF), which meanders through the area. See Fla. Admin. Code R. 62- 302.700(9)(i)41. In November 1971, Respondent purchased his property and on a later undisclosed date built a residence. According to Department Exhibit 24, which is a letter authored by Respondent in 1987, he first began filling the floodplain on the western part of his land "probably" in 1971, or just after he purchased the property. Historical aerial photographs of the site indicate that sometime before 1984, he constructed a pond just north of his house, apparently to be used for fishing, and by 1992 he had constructed a second, smaller pond just south of the larger pond. On February 3, 1986, the United States Army Corps of Engineers (Corps) sent Respondent a Cease and Desist Order in the form of a letter in which it advised Respondent that he had placed a "considerable amount of fill material" in wetlands adjacent to the River; that such filling was in violation of the federal Clean Water Act of 1977; that legal action would be taken if further filling occurred; that he must reply within 15 days indicating that he had complied with the terms of the letter; and that within the same timeframe he must provide information concerning the public and/or private need for the work, the effects on the surrounding area, and any other relevant information. By letter dated March 12, 1986, Respondent responded to the Cease and Desist Order and stated that prior to 1977 the land had been changed from wetlands to usable farmland, that his land did not connect to the River, and that there were no natural waters on his property that connected to state or federal waters. A follow-up letter was sent by the Corps on February 26, 1987, in which the Corps advised Respondent that he could resolve the violation "by removing all unauthorized fill material" and restoring the area. He was also told that in lieu of doing this, he could file an application for an after- the-fact permit authorizing the filling. A copy of a Joint Application for Permit was attached to the letter. On March 7, 1987, Respondent replied to the Corps' letter and stated that his land did not connect with any other waterbody; that he had been filling his property since 1971 without objection by anyone; that he had a "hard time understanding all these rules and regulations"; and that he questioned why the Corps was causing him "so much trouble for the last couple of years." Respondent never filed an application for an after-the-fact permit nor did he receive a reply to his letter. After an "Unauthorized Wetland Alteration Field Investigation" was conducted by the Southwest Florida Water Management District (District) sometime in 1992, by letter dated November 3, 1992, the District advised Respondent that it appeared the "wetland in question was disturbed prior to October, 1984" and that any filling done before that date was exempt from its jurisdiction; that it appeared that other dredge/fill work had been performed on the same wetland since that date; that Respondent's claim that the area was being used for agricultural purposes was not supported by any evidence; that Respondent's activities constituted a violation of Chapter 373, Florida Statutes; and that all illegal activity must be ceased immediately. The disposition of further contacts between the District and Respondent, if any, are unknown. Against this backdrop, on August 16, 2002, the Department's Tampa District Office received a complaint from the District stating that Respondent had illegally filled wetlands on his property. (The record does not show why the District waited almost ten years to refer the complaint to the Department.) In response to that complaint, and as a precursor to issuing a formal notice of violation, on August 20, 2002, the Tampa district office sent Respondent a warning letter indicating that a violation "may exist on [his] property" and requesting that he contact the Department to arrange a meeting "to discuss this matter." By mutual agreement, an inspection of the property was scheduled for September 5, 2002. Because a Department representative became unavailable just before the inspection, the Department did not appear at the property on the scheduled date or notify Respondent that the inspection had been cancelled. The following day, September 6, 2002, Department personnel were in the area and appeared unannounced at Respondent's property. However, no one was home and they did not inspect the property. Several weeks later, Department personnel again visited the site but could not gain access. Because Respondent was unwilling to grant access to his property, on April 17, 2003, the Department obtained an inspection warrant from the Circuit Court in Hernando County authorizing an inspection of Respondent's property. On April 22, 2003, seven Department employees inspected the property. Based upon plant species and hydrological indicators found on the property, it was established that the northwestern corner of Respondent's property lay within the surface water floodplain of the River and constituted wetlands, as defined by Section 373.019(22), Florida Statutes, and Florida Administrative Code Rule 62-340.200(19). (The Department also established that there is a fifty percent chance of the filled area being flooded during any given year.) Therefore, any filling on that portion of Respondent's property would require a permit. Department records reflected that Respondent had never obtained a permit authorizing any work. During their inspection, Department representatives observed that a narrow strip of land totaling around 0.20 acres in the northwest corner of the parcel (just west of the larger fish pond) had been filled with concrete debris and sand to a height of around 6 or 7 feet in an effort to sever the connection between the River and the wetlands.5 Unless the berm is removed, the activity could lead to adverse cumulative impacts, including a loss in available habitat for floral and fauna that currently use the area, a loss in water storage capacity of the current system, and a loss in detritus formation and nutrient/pollution cycling. An Enforcement Inspection Report prepared after the inspection recommended that an enforcement action be initiated. On June 10, 2004, the Department issued its Notice alleging that Respondent had violated Florida Administrative Code Rule 62-343.050, which requires a permit to fill wetlands or surface waters, and Section 403.161(1)(b), Florida Statutes, which makes it unlawful to violate a Department rule. On August 12, 2004, Respondent filed his Petition challenging the Notice. In his Petition, Respondent denied that he owned the property on which the filling occurred; alleged that the property had been previously inspected in 1986 by the Corps; alleged that the District confirmed by letter in 1992 that the filling had occurred prior to 1984 and was therefore exempt from regulation; and alleged that he is entitled to "restitution" for damages caused by the Wysong Dam being rebuilt downstream from his property. At hearing, Respondent also suggested that the filled area was not wetlands. This proceeding followed. On November 17, 2004, the Department conducted a second inspection of Respondent's property. The objectives of that inspection were to determine the boundary of the filled area by Global Position Satellite equipment and to allow Eric D. Hickman, the new Environmental Manager who was not present during the first inspection, to perform a review of the property. Through ground reconnaissance and photo- interpretation, Mr. Hickman was able to establish the landward extent of the wetlands and other surface waters of the State. Based on vegetation, soils, and hydrologic indicators found on the site, he was able to confirm that the filled area on Respondent's property is wetlands. In fact, because of the overwhelming evidence of wetland indicators on the property (that is, the site conditions met nearly every single test criterion for a wetland), Mr. Hickman stated that he could make that determination with "100 percent certainty." Mr. Hickman concurred with the findings in the earlier inspection report, including one that the filled area is located entirely within a forested floodplain, which is both a surface water and a wetland due to regular flooding in the area for sustained periods of time. Photographs received in evidence, and testimony by Department representatives, confirm that the flooding occurs on a regular basis. See also Finding of Fact 13, supra. Significantly, Mr. Hickman observed that additional filling had occurred since the first inspection some eighteen months earlier, and that there were two signs on the front of his property reading "Needed Clean Fill." Finally, the location of two large cypress trees on the property suggested that an intact and mature floodplain existed before the alterations occurred. The filling poses a threat to the functions of the land, such as vegetation and habitat. Therefore, removal of the concrete debris and sand is necessary in order to restore those functions. While the Department would not promise that he could do so, it did represent that it would consider Respondent's request to remove the debris and sand to the upland area of his property, which would be much less expensive than hauling it offsite. At hearing, Respondent acknowledged that despite a warning by the Corps in 1986 that the filling was illegal, he has continued to engage in that activity for at least two reasons: to prevent flooding of his property and to prevent contaminated River water from reaching his fish ponds. He further acknowledged that as recently as 2003 he allowed several trucks to dump concrete debris and sand onto his property. (The concrete debris was obtained from a local Walmart store.) Respondent justified his actions in part on the ground that the Corps failed to respond to his letter in March 1987, and he assumed that this was an indication that the filling was legal. He also contended that the filled area was originally uplands when he purchased the property, but it changed to wetlands due to increased runoff from heavy development in the area and the construction of a dam downstream which caused the River to overflow during heavy rains. As a consequence, his property and others in the area (such as homes on Cyril Drive) have been prone to flooding. However, Mr. Hickman established that a floodplain existed on the property before any filling occurred. In any event, the Department has jurisdiction over both natural and artificial wetlands, and permits are needed for filling either type of wetland. Therefore, while the filling may have been performed for a salutary purpose, after 1984 he needed a permit to do so (assuming that such activities in a wetland are permittable). The fact that the land is zoned agricultural by Hernando County does not negate this requirement.5 Finally, a contention that a wetland is changed to uplands by merely placing dry dirt onto the wetland has been rejected. The land still remains a wetland for jurisdictional purposes. Respondent never filed for an after-the-fact permit (as suggested by the Corps in 1987) because it was too "complicated" to fill out the form. He conceded, however, that he did not ask the Department for assistance in doing so. Except for the explanations discussed above, Respondent presented no mitigating evidence. He has asked that due to his financial circumstances the amount of the fine be moderated or forgiven. At hearing, three Tampa District Office employees established that they spent a total of 70 hours of time on this case. At their hourly rate of pay, this totals $1,850.00 in investigative costs. In addition, Mr. Hickman was required to perform a wetland determination on the property. The normal charge for an assessment on a property of this size is $550.00. The reasonableness of these amounts was not disputed by Respondent. However, the Department is seeking reimbursement of only $500.00.
The Issue The issue is whether Respondents should have an administrative penalty assessed, take corrective action on their property to remove fill, and pay investigative expenses for the reasons stated in the Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice) issued by the Department of Environmental Protection (Department) on July 5, 2017.
Findings Of Fact Respondents’ residence is located at 3100 Victoria Drive, St. Augustine. The property, purchased in 2009, faces Victoria Drive to the west. The high point of the lot is where it abuts the street. It then slopes downward to a small creek which lies at the rear of the parcel. The largest elevation drop is at the front of the property. The Department has the authority to institute a civil or administrative action to abate conditions that may create harm to the environment. In this case, it filed a Notice directed against Respondents for allegedly placing fill on 0.11 acres of jurisdictional wetlands (around 5,000 square feet) located on their property. Mr. Ravan admits that he placed fill on his property without a permit, but he disputes the Department’s assertion that the filled area covers 0.11 acres of wetlands. Wetlands are areas that are inundated and saturated with water for a long enough period of time to support vegetation that can adapt to that environment. Fla. Admin. Code R. 62- 340.200(1). If the landward extent of a wetland cannot be determined by direct application of the rule definition, i.e., without significant on-site work, field verification using the wetland delineation methodology in Florida Administrative Code Rule 62-340.300 is required. Field verification involves a visual inspection of the site to evaluate vegetation, soil conditions, and other hydrologic indicators on the property. If two of these characteristics are found, the Department identifies the area as a wetland. In this case, field verification was necessary. In 2016, Mr. Ravan was involved in a dispute with a neighbor whose dog was repeatedly “messing” in his backyard. After words were spoken by the two, Mr. Ravan believes the neighbor informed the County that Mr. Ravan was placing fill in his back yard. This assumption probably is true, as emails from the County to the Department state that the case arose a few days later as a result of a “citizen complaint.” Pet’r Ex. 18. After receiving the citizen complaint, a County employee visited Respondents’ property. The employee informed Mr. Ravan that fill material (dirt) had been placed on jurisdictional wetlands without a permit. A few days later, the County reported the alleged violation to the Department. In response to the County’s referral, in September 2016, Ms. Sellers, a Department Environmental Specialist III, inspected the property with a County representative. In preparation for her visit, she reviewed aerials of the property to determine the elevation of the area, reviewed soil mapping layers, and drove around the site to verify the drainage patterns on the property and whether it had any connections to a water body. During her inspection, Ms. Sellers performed “a good analysis of the property” and took photographs of the filled area. The results of her inspection are found in a Chapter 62- 340 Data Form accepted in evidence as Exhibit 17. It supports a finding that the filled area consists of wetlands and covers around 0.11 acres. Respondents submitted no contrary evidence. After her inspection, Ms. Sellers informed Mr. Ravan that he must remove the fill. The Notice was issued on July 5, 2017. On a follow-up visit a year after her initial inspection, Ms. Sellers observed that some of the fill piles had been removed, the remaining fill had been spread throughout the area, and some of the vegetation observed in September 2016 was now covered. In a visit a few weeks before the final hearing in April 2018, Ms. Sellers observed that some fill still remained. To comply with the law, Mr. Ravan must remove the fill, obtain a permit, or enter into a consent order. If a permit is obtained, besides the cost of the permit ($420.00), Mr. Ravan would have to offset the environmental impacts by purchasing a mitigation bank credit, an expensive undertaking. If the fill is removed, it must be extracted with a small device, such as a wheelbarrow or other small piece of equipment, as a vehicle cannot be driven into the backyard. This will be a tedious and time-consuming process. The Department’s preferred option is to remove the fill. Because of the slope of the lot, mainly at the front of the parcel, Mr. Ravan has experienced drainage problems since he purchased the home in 2009. The drainage problem is caused by a County-owned culvert that runs along Victoria Drive, stops at the corner of his lot, and then dumps the runoff into his yard. Despite Mr. Ravan’s repeated efforts to obtain relief, the County has refused to correct the problem. During heavy rain events, the blocked culvert overflows into his yard and runs down the side of his property to the rear of the lot. Photographs support Mr. Ravan’s claim that the drainage problem has caused severe erosion on his property. Mr. Ravan testified that some of the fill was in place when he purchased the property from the prior owner in 2009. Because of its age, he contends the fill should be “grandfathered.” However, Ms. Sellers established that “historic fill” must be at least 20 years old in order to be immune from enforcement action. In this case, there is no proof that the fill qualifies for this exception. Mr. Ravan has cooperated fully with the Department throughout this proceeding. The evidence shows that Mr. Ravan acted in good faith and is only attempting to prevent runoff from the culvert, which has resulted in deep channels in the side and rear of his yard and washed away much of the top soil. There is no evidence regarding the derivation of the Department’s “investigative expenses” of at least $500.00. At hearing, Ms. Sellers summarized the proposed corrective action. This is a reasonable corrective action.1/ Mr. Ravan disputes her assertion that in some areas of the backyard, up to two feet of fill must be removed. He contends that if two feet of soil is removed, the water table would be reached. However, this issue must be resolved during the corrective action process.
Findings Of Fact Quality of Service: Twelve customers testified at the hearing in opposition to the proposed rate increase. The major customer objection is the size of the increase sought. Other objections are directed at the utility's rate structure, and the required tie-in to the PWA pipeline. Some customers desire to have separate rates set for the two areas served by J. C. Utilities, Inc., (Timber Oaks and San Clemente East), and one customer objected to the taste and smell of the water being provided. Nevertheless, an engineer from the Florida Public Service Commission presented evidence that the utility is meeting all state standards and is not under citation by the Department of Environmental Regulation. On the basis of the entire record, the evidence supports a finding that the utility's water and sewer service is satisfactory. Used and Useful Plant in Service. The utility contends that 33.72 percent of its sewer plant is not used and useful in the public service, and has deleted this amount from its sewer rate base. The Florida Public Service Commission engineer agrees, based on the actual recorded flows of the sewer plant and the growth of the system. The water plant in service is 100 percent used and useful in the public service. Acquisition Adjustment: The utility calculated an addition to rate base of $17,370 for San Clemente East (net of 1978 amortization) for acquisition costs, and presented evidence to demonstrate that this acquisition is in the public interest. Based on the entire record, the evidence supports a finding that this acquisition benefits the customers of J. C. Utilities, Inc., and is in the public interest. Thus, the adjustment is warranted. Income tax expense: Several questions are raised in the area of income tax expense. These deal with whether to treat the utility as a separate entity or part of a group filing consolidated tax returns, the appropriate computation of state income taxes, and the effect the capital structure of the utility has on taxable income for ratemaking purposes. All of these questions except one address the ultimate dollar amount of tax expense. The exception addresses the appropriateness of the expense. Only if income taxes are determined to be appropriate can the dollar amount of such taxes be considered. When net operating income is equal to or less than interest expense, there is no taxable income. This is generally true whenever a company's capital structure consists largely of debt or of debt only. The capital structure of J. C. Utilities, Inc., is comprised entirely of debt, according to the company's financial statements. The annual report shows capital stock of $10, a deficit in retained earnings of $68,834, and additional paid-in capital of $490. The utility's financial witness verified that J. C. Utilities, Inc. has no externally financed debt and relies for funds on its parent, U.S. Homes Corporation. The application reflects that the company's capital structure consists of customer deposits (debt), and loans and advances from the parent company (debt). This evidence supports a finding that the utility's capital structure is 100 percent debt. Accordingly, there can be no allowance for either state or federal income taxes in making a determination of revenue requirements for this utility. (See Order No. 9256 in Docket No. 790027-W) and all questions relating to the dollar amount of income tax expense are irrelevant. Cost of capital: J. C. Utilities, Inc., is financed totally by its parent company, U.S. Homes Corporation. The application originally requested a rate of return of 11.5 percent. At the hearing, various witnesses for the utility suggested rates ranging from 13.2 percent to 25 percent. However, since the utility has no equity, no return on equity can be provided. In calculating an appropriate rate of return to be granted to the utility, the original cost of debt rate of 11 percent and the recently revised rate of 8 percent on customer deposits can be used. These cost of capital components and rates thereon yield a weighted average cost of capital of 11.32 percent. This rate is supported by the evidence, and should be granted. Depreciation on Contributed Property: Appropriate adjustments have been made to the utility's water rate base and sewer rate base, and operating statements, to reflect the practice of the Florida Public Service Commission to add back accumulated depreciation on contributed property in rate base, and remove these items from operating expense. These adjustments appear on the attached schedules. Rate Base and Operating Statements: The attached schedules 1 through 6 detail the utility's rate base for water, rate base for sewer, and the water and sewer operating statements. Appropriate explanations for the various adjustments also appear in these schedules. Construction water: During the test year, the utility did not bill for construction water in the months of January, February, and March. Starting in April construction water ,and line flushing was metered and billed to the various construction companies connected with the Timber Oaks development. During the final nine months of the year when the construction water was accounted for a total of 28,626,903 gallons were sold which generated $17,590 in water revenue. In order to estimate the unaccounted for construction water, the nine months billing can be annualized. This amounts to an additional 9,542,301 gallons, which increases test year revenue by $5,725. Rate Structure: In order to structure rates that will be fair to all customers, they must not only generate the approved revenue, but should also assure that all classes of customers share in the cost to provide service. The base facility type of rate structure establishes a monthly minimum service charge, which covers fixed costs such as depreciation, property taxes, and allocated portions of billing, collecting, and customer accounting expenses. Meter size is still used to determine the demand factor. After the base charge is established, a charge per 1,000 gallons is determined. This charge recovers costs related to transmission and treatment, and allocated portions of billing, collections, accounting expense, plant labor, etc. Customers then pay a gallonage charge based on use. This allows each customer some control over the amount paid for service. This form of rate structure should be used in setting rates for J. C. Utilities, Inc. Separate rate structures: J. C. Utilities, Inc. provides water service to the separate, unconnected systems serving San Clemente East and Timber Oaks. An appropriate rate structure should be established to provide separate water rates for San Clemente and Timber Oaks, so that the customers of each system pay rates to cover only the costs associated with these systems. P.W.A. surcharge: Because permanent rates are to be established, the utility should no longer be permitted to make a separate surcharge for PWA water purchased. This expense should be incorporated into the other costs of J. C. Utilities, Inc. Connection charges: In its application, the utility requested an increase in water and sewer connection charges. The company used the current number of customers served by the water system to arrive at the customer hydraulic share. The correct way to establish the hydraulic share is to divide the number of customers that can be served by the system into the cost of the water plant. However, there is other information needed in order to accurately and fairly set connection charges, which was not presented by the utility. Rather than deny the request for an increase in water and sewer connection fees, an investigation docket should be opened for the purpose of determining whether increases are warranted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of J. C. Utilities, Inc., 2001 Ponderosa Avenue, Port Richey, Florida 33568, be granted in part, and that the utility be authorized to receive gross annual water revenues of $28,731 for San Clemente East, and $203,725 for Timber Oaks, and gross annual sewer revenue of $99,473, by rates to be approved by the Florida Public Service Commission. It is further RECOMMENDED that an acquisition adjustment of $17,370 be allowed for San Clemente East. It is further RECOMMENDED that the utility be required to implement a base facility charge in structuring its rates, in the manner set forth above. It is further RECOMMENDED that a separate investigation docket be opened for the purpose of resolving the matter of the utility's request for increased water and sewer connection charges. THIS RECOMMENDED ORDER entered on this 8th day of July, 1980, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA PUBLIC SERVICE COMMISSION In re: Application of J. C. DOCKET NO. 790399-WS (CR) Utilities, Inc. to amend its ORDER NO. 9808 rates and charges. ISSUED: 2-23-81 / DOAH CASE NO. 80-1184 The following Commissioners participated in the disposition of this matter: JOSEPH P. CRESSE, CHAIRMAN GERALD L. GUNTER JOHN R. MARKS, III KATIE NICHOLS Pursuant to Notice, an administrative hearing was held before William B. Thomas, Hearing Examiner with the Florida Public Service Commission, on May 6, 1980, in Port Richey, Florida, on the application of J. C. Utilities, Inc., for increased rates and charges for water and sewer service provided to its customers in Pasco County, pursuant to Section 367.081, Florida Statutes. On July 1, 1980, the matter was transferred to the Division of Administrative Hearings, but continues to be assigned to William B. Thomas, as DOAH Hearing Officer, for a recommended order. APPEARANCES: Jack H. Geller, Esquire, Suite 200, Clearwater professional Center, 600 Bypass Drive, Clearwater, Florida 33156, for J. C. Utilities, Inc., Petitioner. Samuel H Lewis, Esquire, 101 East Gaines Street, Tallahassee, Florida 32301, for the Florida public Service Commission and the public generally. The Hearing Officer's Recommended Order was filed on July 8, 1980. Timely exceptions to the Hearing Officer's recommended order were filed by the petitioner. Now after consideration of all of the evidence in the record, we enter our order.
