Findings Of Fact The Petitioner in this matter is Capeletti Brothers, Inc., a Florida corporation. .The Respondent is the State of Florida, Department: of Environmental Regulation, an agency of the State of Florida with regulatory authority granted pursuant to Chapter 253, Florida Statutes, and Chapter 403, Florida Statutes, and those rules attendant thereto. Through its Petition as received by the State of Florida, Department: of Environmental Regulation, the present: Petitioner has filed a formal proceeding pursuant to Subsection 120.57(1), Florida Statutes, and through this Petition has challenged the Department's assertion of jurisdiction to require an-environmental permit and in the alternative has requested that the permit be granted if it is determined that a permit is necessary. (The jurisdictional question was ruled on by order dated December 7, 1979.) The Petitioner's activity which fostered the current dispute between the parties involved the Petitioner's intention to excavate certain property in Broward County, Florida, and through such excavation remove rock fill material constituted primarily of limestone and leave in place a quarry containing water. The Petitioner holds an option to purchase the property in question subject to the granting of necessary environmental permits to conduct the excavation. The terms and conditions of that option to sell may be found in the Petitioner's Exhibits 10 and 11, admitted into evidence. The Petitioner had intended to use the fill material in the furtherance of a road building project by contract entered into between the Petitioner and the State of Florida, Department of Transportation, the contract award being made on February 23, 1977. The parties to that contract terminated the contract prior to any permit for dredging having been granted; however, Petitioner still desires to excavate at the site for the purpose of obtaining fill material for future building projects and the nature of the option to purchase would allow the Petitioner to continue to pursue its efforts at obtaining a permit, notwithstanding the termination of the original agreement between Capeletti Brothers, Inc., and the State of Florida, Department of Transportation. The Respondent has issued a Notice of Intent to Deny the permit by a letter dated March 26, 1979, and a copy of the Notice of Intent to Deny may be found as Exhibit "A" to the Petition. This Notice of Intent to Deny followed the receipt and review of Capeletti Brothers, Inc.'s application for permit dated October 18, 1978. In addition, the Respondent has asserted permit jurisdiction based upon grounds not set forth in the Notice of Intent to Deny. This claim for jurisdiction is a claim for jurisdiction under the provisions of Chapters 253 and 403, Florida Statutes, and their associated rules. A copy of the application for permit may be found as Petitioner's Exhibit No. 1 admitted into evidence and this application contains sketches showing the location of the proposed project with reference to the surrounding terrain and other features. The proposed project site consists of approximately forty-four acres of land located south of Andytown, Florida, and west of State Road 25 (U.S. 27). The site is surrounded by Alligator Alley to the north; State Road 25 to the east, with a contemplated borrow canal to be constructed between State Road 25 and the project location, immediately adjacent to State Road 25; to the west by Florida Power and Light patrol road, with a borrow canal running north and south located west of the patrol road and Levee 37 further west of the borrow canal, this levee being maintained by the South Florida Water Management District. To the south of the project is an access road which grants access to the Florida Power and Light patrol road. The quarry which is to be dug on the acreage in question will not intersect either of the borrow canals referred to above. Upon completion, the pit area will consist of approximately twenty-two acres of open excavation approximately forty feet deep with a littoral zone constituted of sawgrass. At the conclusion of the project, all fill material that has been excavated will have been removed from the project site and the access road to the project site destroyed. The pit will be left full of water that has entered the pit at the excavation during the dredging. That water will be constituted primarily of groundwater located immediately below the surface in pockets found in the limestone fill material. The displacement of limerock will allow the groundwater to fill the void. Although the water which enters the excavation site will be primarily groundwater, the waters within its boundaries will eventually have the characteristics of surface waters due to the design of the activity being much like a natural pond. Approximately four thousand feet south of the project site is an abandoned rock quarry with an access road from State Road 25 and approximately two miles south of the project site is an active rock quarry operated by Rosen, Rosen and Tupler. The nature of the Rosen, Rosen and Tupler quarry is similar to that as contemplated by the Petitioner's plan. There are other rock quarries of similar nature located in the vicinity of the project site. The project site does not receive surface flows or sheet flows from adjacent properties due to the fact that the project site is surrounded by dykes and borrow canals which block surface flows or sheet flows from any adjacent properties. The surface water flow on the property is in a more or less southeasterly direction. The rainfall that occurs at the project site causes the project site to be inundated at times with standing water as deep as six or eight inches. This water will not exit the property except in times of high incidence of rain, when the water may overflow the Florida Power and Light access road and make entry into the borrow canal adjacent to State Road 25, gaining such access at the southeast of the project site. At present, part of the borrow canal east of the project site and adjacent to State Road 25 has been filled in. As stated before, this area will be replaced by a future excavation of a borrow canal in the area now covered. The surface water which stands on the project site normally percolates into the ground or evaporates into the atmosphere. The primary vegetation at the project site is sawgrass. The project: as contemplated would remove some of these grasses and attached heavy muck soils, but there would remain a sawgrass zone between the contemplated borrow canal located east of the project and the Levee 37 borrow canal located west of the project. The borrow canals located to the east and west of the project site flow south to the South New River Canal, which runs generally east and west. The waters collected in the South New River Canal are subject to being pumped through the pumping station S-9 which distributes water to the west or the water may be carried through the South New River Canal in an easterly direction, eventually entering the South New River, a natural waterway subject to navigation. The South New River is approximately twenty miles from the project site. The South New River empties into the Atlantic Ocean. Those waters which are pumped westerly through pumping station S-9 may enter other natural waterways and eventually the Gulf of Nexico by transportation through a series of artificial canals and natural water connections. Although the Petitioner does not intend to introduce contaminants at the proposed project site during the preparation stage; stage of excavation and stage of evacuation, the testimony concerning the project site and an active quarry of similar nature in the immediate vicinity, and other similar quarries, establishes that it could be reasonably expected that oils, greases and lead would be dispersed in the area of the quarry pit, the immediately adjacent wetlands and at times of high incidence of rainfall, into the borrow canals adjacent to the property. However, before the contaminants reach the borrow canals by overland sheet flow, they will be filtered out by the wetlands. The contamination into the pit would find its way into the Biscayne Aquifer, the Aquifer at the project site being only a foot or so beneath the surface., The introduction of contaminants into the Biscayne Aquifer at the project site will eventually lead to the direct mixing of those contaminants with portions of the Biscayne Aquifer adjacent to the project site, in particular west of the project site in the containment area which is part of the system of submerged lands of the state and to the borrow canal east of the project site. There is also the possibility of copper, zinc, iron, chromium, manganese, dieldrin and polychlorinated biphenyls contaminants being introduced into the pit (quarry). in association with the project, though this possibility is more remote than in the case of the substances previously mentioned and the possibility is so remote that it is not reasonably expected to occur. Therefore, these are not substances for which the Petitioner must do actual testing to show that they do not exceed water quality standards in order to establish necessary reasonable assurances. The facts presented did not give rise to even a potentiality for the presence of other regulated substances that might exceed applicable water quality standards, with the exception of phenols which are reported next. Phenolic-type compounds were found in the active and inactive quarry pits similar to the proposed installation These compounds as detected in the sample and reasonably expected at the project are naturally occurring phenomena and not the direct product of the mining activity. The mining will create turbid conditions and there will be fluctuations in dissolved oxygen concentrations and BOD values and changes in pH values in the pit. The above-referenced contamination and variations in values would be injurious to human health or welfare, animal and plant life and property and, as a consequence, interfere with the enjoyment of life and property, if found to exceed the Respondent's applicable water quality standards. The Petitioner, if allowed to carry out the project, has given specific reasonable assurance that it will not violate the Respondent's applicable water quality standards related to the turbidity, dissolved oxygen, BOD, lead, oils and greases, and pnenols. See Rule 17-3.05(2), Florida Administrative Code. Other substances-and conditions found in that subsection of the rule not being reasonably expected to occur, necessary reasonable assurance has been established for those. There will be no discharges of heated water. See Rule 17-3.05(3), Florida Administrative Code. The project site does not involve outstanding Florida waters within the meaning of Rules 17-3.041 and 17-4.242(1), Florida Administrative Code. Testimony offered in the course of the hearing shoes that in similar projects in terms of their location and purpose, the State of Florida, Department of Environmental Regulation, has at times disclaimed its jurisdiction to require a permit and at other times granted permits.
The Issue The issue to be determined is whether Respondent Land Trust #97-12 (“Land Trust”) is entitled to an Environmental Resource Permit (“ERP”) for its proposed project on Perico Island in Bradenton, Florida.
Findings Of Fact The Parties Petitioner Joseph McClash is a resident of Bradenton, Florida, who uses the waters in the vicinity of the project for fishing, crabbing, boating, and wildlife observation. Petitioner Manasota-88, Inc., is an active Florida nonprofit corporation for more than 20 years. Manasota-88 has approximately 530 members, most of whom (approximately 300) reside in Manatee County. The mission and goal of Manasota-88 includes the protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Petitioner FISH is an active Florida nonprofit corporation in existence since 1991. FISH owns real property in unincorporated Cortez in Manatee County and maintains a Manatee County mailing address. FISH has more than 190 members and more than 150 of them own property or reside in Manatee County. The mission and goal of FISH includes protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Intervenor Suncoast Waterkeeper, Inc., is an active Florida nonprofit corporation in existence since 2012. The mission of Suncoast Waterkeeper is “to protect and restore the Suncoast’s waterways through enforcement, fieldwork, advocacy, and environmental education for the benefit of the communities that rely upon coastal resources.” Suncoast Waterkeeper provided the names and addresses of 25 members residing in Manatee County. A substantial number of the members of Suncoast Waterkeeper use the area and waters near the proposed activity for nature-based activities, including nature observation, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Intervenor Sierra Club, Inc., is a national organization that is a California corporation registered as a foreign nonprofit corporation in Florida. Sierra Club has been permitted to conduct business in Florida since 1982. The mission of Sierra Club includes protection of the natural resources of Manatee County, which include Anna Maria Sound and Perico Island. Sierra Club provided the names and addresses of 26 members who live in Manatee County. A substantial number of the members of Sierra Club use the area and waters near the proposed project for nature-based activities, including observing native flora and fauna, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Respondent Land Trust is the applicant for the challenged ERP and owns the property on which the proposed project would be constructed. Respondent District is an independent special district of the State of Florida created, granted powers, and assigned duties under chapter 373, Florida Statutes, including the regulation of activities in surface waters. The proposed project is within the boundaries of the District. The Project Site The project site is 3.46 acres of a 40.36-acre parcel owned by Land Trust. The parcel includes uplands, wetlands, and submerged lands, on or seaward of Perico Island, next to Anna Maria Sound, which is part of Lower Tampa Bay. Anna Maria Sound is an Outstanding Florida Water. The project site is adjacent to a large multi-family residential development called Harbour Isles, which is currently under construction. Access to the Land Trust property is gained through this development. The Land Trust parcel contains approximately seven acres of high quality mangroves along the shoreline of Anna Maria Sound. They are mostly black and red mangroves, with some white mangroves. The mangroves on the project site amount to a total of 1.9 acres. Mangroves have high biological productivity and are important to estuarine food webs. Mangroves provide nesting, roosting, foraging, and nursery functions for many species of wildlife. Mangroves also provide a buffer from storm surge and help to stabilize shorelines. Wildlife species found on the project site include ibises, pelicans, egrets, spoonbills, mangrove cuckoos, bay scallops, fiddler crabs, mangrove tree crabs, horseshoe crabs, marsh rabbits, raccoons, mangrove bees, and a variety of fish. No endangered species have been observed on the project site, but mangroves are used by a number of listed species. The Proposed Project The proposed project is to construct a retaining wall, place fill behind the wall to create buildable lots for four single-family homes, construct an access driveway, and install a stormwater management facility. The stormwater management facility is a “Stormtech” system, which is an underground system usually used in situations where there is insufficient area to accommodate a stormwater pond. Riprap would be placed on the waterward side of the retaining wall. The retaining wall would be more than 35 feet landward of the mean high water line in most areas. Petitioners contend the proposed retaining wall is a vertical seawall, which is not allowed in an estuary pursuant to section 373.414(5). “Vertical seawall” is defined in section 2.0(a)(111), Volume I, of the Environmental Resource Permit Applicant’s Handbook (“Applicants Handbook”) as a seawall which is steeper than 75 degrees to the horizontal. It further states, “A seawall with sloping riprap covering the waterward face to the mean high water line shall not be considered a vertical seawall.” The retaining wall is vertical, but it would have riprap covering its waterward face and installed at a slope of 70 degrees. The retaining wall is not a vertical seawall under the District’s definition. Stormwater Management Stormwater in excess of the Stormtech system’s design capacity would discharge into Anna Maria Sound. Because Anna Maria Sound is an Outstanding Florida Water, District design criteria require that an additional 50 percent of treatment volume be provided. The Stormtech system meets the District’s design criteria for managing water quality and water quantity. Projects which meet the District’s design criteria are presumed to provide reasonable assurance of compliance with state water quality standards. Petitioners’ evidence was not sufficient to rebut this presumption. Petitioners contend the District waiver of water quality certification for the proposed project means that Land Trust was not required to meet water quality standards. However, that was a misunderstanding of the certification process. All state water quality criteria are applicable. Petitioners contend water quality monitoring should be imposed for this project. However, section 4.7 of the Applicant’s Handbook, Volume II, provides that if the applicant meets the District’s design criteria, water quality monitoring is not required. Petitioners failed to prove the proposed stormwater management system cannot be constructed, operated, or maintained in compliance with applicable criteria. Wetland Impacts In order to create buildable lots, 1.05 acres of the 1.9 acres of mangroves on the project site would be removed and replaced with fill. A swath of mangroves approximately 40 feet wide would remain waterward of the retaining wall. The proposed direct and secondary impacts to the functions provided by wetlands were evaluated using the Uniform Mitigation Assessment Method (“UMAM”) as required by Florida Administrative Code Chapter 62-345. UMAM is used to quantify the loss of functions performed by wetlands considering: current condition, hydrologic connection, uniqueness, location, fish and wildlife utilization, time lag, and mitigation risk. The District determined the filling of 1.05 acres of wetlands would result in a functional loss of 0.81 units and the secondary impacts resulting from installation of the retaining wall would result in a loss of 0.09 units for a total functional loss of 0.9 units. Petitioners contend the functional loss would be greater. Petitioners contend the wetland delineation performed by Land Trust and confirmed by the District did not extend as far landward as the hydric soils and, therefore, the total acreage of affected wetlands would be greater. However, Petitioners did not produce a wetland delineation for the project site, and their evidence was not sufficient to rebut Land Trust's prima facie evidence on this issue. Petitioners’ experts believe the secondary impacts caused by the proposed project would be greater than calculated, including fragmentation of the shoreline mangrove system, damage to the roots of mangroves near the retaining wall, and scouring effects caused by wave action associated with the retaining wall. Respondents assert that the analysis by Petitioners’ expert Jacqueline Cook relied on federal methodology and that “the science used in her analysis is not contained in the state or district rule criteria.” Reliance on science is always appropriate. However, Ms. Cook’s use of a federal impact assessment methodology creates doubt about whether her scoring is consistent with UMAM. Despite the unreliability of Ms. Cook’s UMAM score, it is found that Respondents’ UMAM score under-calculated secondary impacts due to scour and other effects of changed water movement that would be caused by the retaining wall. It was not explained how the loss of storm buffering and erosion prevention functions of wetlands are accounted for in the UMAM score. Elimination or Reduction of Impacts Section 10.2.1 of the Applicant’s Handbook, Volume I, states that in reviewing a project the District is to consider practicable design modifications to eliminate or reduce impacts to wetland functions. Section 10.2.1.1 explains: The term “modification” shall not be construed as including the alternative of not implementing the activity in some form, nor shall it be construed as requiring a project that is significantly different in type or function. A proposed modification that is not technically capable of being completed, is not economically viable, or that adversely affects public safety through the endangerment of lives or property is not considered “practicable.” A proposed modification need not remove all economic value of the property in order to be considered not “practicable.” Conversely, a modification need not provide the highest and best use of the property to be “practicable.” In determining whether a proposed modification is practicable, consideration shall also be given to cost of the modification compared to the environmental benefit it achieves. Land Trust originally proposed constructing a surface water retention pond. The Stormtech stormwater management system would cause less wetland impact than a retention pond. Land Trust contends the use of a retaining wall reduces wetland impacts because, otherwise, more mangroves would have to be removed to account for the slope of the waterward side of the fill area. However, this proposition assumes the appropriateness of the size of the fill area. Land Trust also contends wetland impacts are reduced by using the adjacent development to access the proposed project site, rather than creating a new road. However, the evidence did not establish that Land Trust had a practicable and preferred alternative for access. Unlike the Stormtech system, the retaining wall and access driveway were not shown to be project modifications. The proposed project would cause fewer impacts to wetlands if the fill area was reduced in size, which was not shown to be impracticable. Reducing the size of the fill area would not cause the project to be significantly different in type or function. Land Trust did not demonstrate that it implemented reasonable design modifications to eliminate or reduce impacts to wetland functions. Mitigation Land Trust proposes to purchase credits from the Tampa Bay Mitigation Bank, which is 17 miles north of the proposed project site. The Tampa Bay Mitigation Bank is in the Tampa Bay Drainage Basin. The project site is in the South Coastal Drainage Basin. Pursuant to section 10.2.8 of the Applicant’s Handbook, Volume I, if an applicant mitigates adverse impacts within the same drainage basin, the agency will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. However, if the applicant proposes to mitigate impacts in another drainage basin, factors such as “connectivity of waters, hydrology, habitat range of affected species, and water quality” will be considered to determine whether the impacts are fully offset. The parties disputed whether there was connectivity between the waters near the project site and the waters at the Tampa Bay Mitigation Bank. The more persuasive evidence shows there is connectivity. There was also a dispute about the habitat range of affected species. The evidence establishes that the species found in the mangroves at the project site are also found at the mitigation bank. However, local fish and wildlife, and local biological productivity would be diminished by the proposed project. This diminution affects Petitioners’ substantial interests. The loss or reduction of storm buffering and erosion prevention functions performed by the mangroves at Perico Island cannot be mitigated for at the Tampa Bay Mitigation Bank. Cumulative impacts are unacceptable when the proposed activity, considered in conjunction with past, present, and future activities would result in a violation of state water quality standards, or significant adverse impacts to functions of wetlands or other surface waters. See § 10.2.8.1, Applicant’s Handbook, Vol. I. Section 10.2.8(b) provides that, in considering the cumulative impacts associated with a project, the District is to consider other activities which reasonably may be expected to be located within wetlands or other surface waters in the same drainage basin, based upon the local government’s comprehensive plan. Land Trust did not make a prima facie showing on this point. Land Trust could propose a similar project on another part of its property on Perico Island. Anyone owning property in the area which is designated for residential use under the City of Bradenton’s comprehensive plan and bounded by wetlands could apply to enlarge the buildable portion of the property by removing the wetlands and filling behind a retaining wall. When considering future wetland impacts in the basin which are likely to result from similar future activities, the cumulative impacts of the proposed project would result in significant adverse impacts to wetland functions in the area. Public Interest For projects located in, on, or over wetlands or other surface waters, an applicant must provide reasonable assurance that the project will not be contrary to the public interest, or if such activities significantly degrade or are within an Outstanding Florida Water, are clearly in the public interest, as determined by balancing the criteria set forth in rule 62- 330.302(1)(a), and as set forth in sections 10.2.3 through of the Applicant’s Handbook. Rule 62-330.302, which is identical to section 373.414, Florida Statutes, lists the following seven public interest balancing factors to be considered: Whether the activities will adversely affect the public health, safety, or welfare or the property of others; Whether the activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activities will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activities will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activities will be of a temporary or permanent nature; Whether the activities will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and The current condition and relative value of functions being performed by areas affected by the proposed regulated activity. The Parties stipulated that the proposed project would not have an adverse impact on public health, navigation, historical resources, archeological resources, or social costs. Land Trust proposes to give $5,000 to the City of Palmetto for an informational kiosk at the City of Palmetto’s public boat ramp. A District employee testified that this contribution made the project clearly in the public interest. Reasonable assurances were not provided that the proposed project is clearly in the public interest because of the adverse cumulative effects on the conservation of fish and wildlife, fishing and recreational values, and marine productivity of Anna Maria Sound, an Outstanding Florida Water.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth above, it is RECOMMENDED that the Southwest Florida Water Management District issue a final order that denies the Environmental Resource Permit. DONE AND ENTERED this 25th day of June, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2015. COPIES FURNISHED: Christian Thomas Van Hise, Esquire Abel Band, Chartered Post Office Box 49948 Sarasota, Florida 34230-6948 (eServed) Martha A. Moore, Esquire Southwest Florida Water Management District 7601 Highway 301 North Tampa, Florida 33637 (eServed) Douglas P. Manson, Esquire MansonBolves, P.A. 1101 West Swann Avenue Tampa, Florida 33606 (eServed) Joseph McClash 711 89th Street Northwest Bradenton, Florida 34209 (eServed) Ralf G. Brookes, Esquire Ralf Brookes Attorney 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904 (eServed) Justin Bloom, Esquire Post Office Box 1028 Sarasota, Florida 34230 (eServed) Robert Beltram, P.E., Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899
The Issue Whether a consumptive use permit for the quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500112 requested water from three (3) wells for the purpose of industrial use. This application is for a new use. The center of withdrawals will be located at Latitude 27 degrees 38' 58" North, Longitude 81 degrees 48' 21" West, in Hardee County, Florida. The application is for the use of not more than 470 million gallons of water per year and not more than 2,592,000 gallons of water during any single day to be withdrawn from the Florida Aquifer. Application received as Exhibit 1. Notice was published in a newspaper of general circulation, to-wit: The Herald Advocate, published weekly in Wauchula, Florida, on August 7 and 14, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The affidavit of publication was received without objection and entered into evidence as Exhibit 2. Letters of objection were received from the following: Mr. Joseph F. Smith, Route 1, Box 238, Wauchula, Florida 33273. Mr. Smith states that in his opinion such withdrawal of water will severely damage his property. He is developing a mobile home park on eight (8) acres and is fearful that the amount of water requested in this application will diminish his supply of water for his project. A letter from Mr. and Mrs. A. H. Van Dyck, written on August 16, 1975, Route 2, Box 657, Wauchula, Florida 33873. They are fearful that the large amount of water American Orange Corporation proposes to pump each day will affect their shallow well which provides water for their home. They would like to see some type of agreement whereby American Orange Corporation would be willing to pay for replacement of the well if the corporation should cause their well to go dry. Mr. Stanley H. Beck, Counselor at Law, wrote a letter in behalf of his client, Harold Beck, requesting information as to the applicable statutes and regulations which affect the matter of the consumptive use permit. A telegram was sent by Harold Beck of Suite 1021, Rivergate Plaza, Miami 33131, stating that he objected to the application of American Orange Corporation's withdrawal of water or the reason that it would reduce the property value. The witness for the permittee is Barbara Boatwright, hydrologist, who was duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes. The staff hydrologist recommended that the permit be granted with two (2) conditions. One was that each of the wells be metered and two, that the District receive monthly reports from each meter. The applicant has consented.
The Issue Whether the Southwest Florida Water Management District proved that Alan R. Behrens signed a pleading, motion, or other paper in this proceeding for an “improper purpose,” and, if so, whether sanctions should be imposed pursuant to Section 120.569(2)(e), Florida Statutes?
Findings Of Fact The Parties Alan R. Behrens has resided and owned property at 4740 Southwest Armadillo Trail, Arcadia, DeSoto County, Florida, since 1985. There is a two-inch free-flowing artesian well used for domestic purposes on this property. Mr. Behrens’ well is approximately 150 feet deep and draws water from the Intermediate aquifer. The well currently has no pumping mechanism, and Mr. Behrens relies on an unaided artesian flow to produce water, which at times is inadequate. In prior administrative cases and the case involving Has-Ben Groves, Mr. Behrens is concerned that the withdrawal of water in the amounts requested by others from areas near his property will impair his ability to draw adequate amounts of water from his well. Mr. Behrens stated that his purpose in challenging the Has-Ben Groves WUP “is to receive assurances that any proposed use is not going to adversely impact [his] well. That’s [his] general biggest, main goal.” He feels that he did not receive assurances from the District; therefore, his only option was to request a hearing. The Southwest Florida Water Management District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. The District has the statutory duty to review and approve or deny applications requesting consumptive water use permits. The Has-Ben Groves WUP Application On January 27, 2003, the District issued a notice of final agency action for approval of Water Use General Permit No. 20012410.000 issued to Has-Ben Groves. The WUP authorized annual average groundwater withdrawals of 31,100 gallons per day (gpd) to be used for irrigation of Has-Ben Groves’ 40-acre citrus grove. (Peak monthly withdrawals of 254,300 gpd and withdrawals for crop protection at 1,015,200 gpd were authorized.) Tomlinson previously owned the Has-Ben Groves’ 40 acres. The District previously permitted the well on the Has-Ben Groves 40 acres when Tomlinson owned the property. The Tomlinson well was previously permitted for 77,000 gpd on an annual basis, but the permit expired. Thus, Has-Ben Groves applied for a new WUP. The Has-Ben Groves permitted well site is located in Hardee County and is approximately 16 miles from Mr. Behrens’ artesian well in DeSoto County, and is expected to draw approximately 94 percent of its water from the Upper Floridan aquifer. Did Mr. Behrens sign a pleading, motion,or other paper for an improper purpose? On January 20, 2003, Mr. Behrens, by letter, asked the District to be advised of any agency action regarding five WUP applications, including the Has-Ben Groves application. In this letter, Mr. Behrens also requested, what he characterized as “public information,” “what the predicted drawdown to the intermediate and Floridan aquifers are.” He inquired further: “Please make sure the hydrologist includes this information. I have previously asked for this basic information; please do not force me to take legal action against SWFMD per the Sunshine law & other public information laws.” (Emphasis in original.) Mr. Behrens was copied with the District’s “Final Agency Action Transmittal Letter” sent to Has-Ben Groves on January 27, 2003. According to Mr. Behrens, “legal action” meant the filing of a petition requesting an administrative hearing. He felt that it was his only option to receive information and assurances. In particular, Mr. Behrens wanted the District to create and provide him with drawdown contours and modeling even if the District believed it was unnecessary. See Endnote 1. By letter dated January 29, 2003, the District, by Pamela A. Gifford, CLA, Office of General Counsel, responded to Mr. Behrens’ request for ‘predicted drawdown’ information and stated in part: “First, please be advised, the District does not prepare ‘predicted drawdown’ for all water use permits. Second, to ask for ‘predicted drawdown’ for permits, you are making a pubic records request. The District does not accept anticipatory public record requests. In other words, when the District receives a public records request, it will search for existing records responsive to the request as of the date of the public records request. . . . Third, the District will not create a record to respond to a public records request. If a ‘predicted drawdown’ exists, it will be provided to you, if it does not, it will not be created to answer your request.”1 By letter dated January 31, 2003, Mr. Behrens responded to the District’s January 29, 2003, letter referred to above and expressed his understanding that he could “expect the results of drawdown modeling to be included in Notices of Agency Action that [he] receive from the District.” Mr. Behrens requested the name of the District office and the hydrologist who reviewed the Has-Ben Groves WUP application; the location of the file; a statement that it was “apparently a new withdrawal”; a request to identify the amount of water coming from the Intermediate and Floridan aquifers; a query as to why the withdrawal would “be cased to only a depth of 120 feet; won’t this mean that much of the water will be drawn from the intermediate?” Mr. Behrens also requested “a copy of the drawdown modeling results (map).” Mr. Behrens advised that it was “very important that new groundwater withdrawals do not lower [his] well level further, because [he is] relying completely on artesian free-flowing pressure; every inch of level reduction creates further hardship for [him].” (During his deposition, Mr. Behrens felt that the District could produce the information on a “voluntary” basis in order to give him “assurances up front.”) By letter dated February 10, 2003, the District, by Ms. Gifford, responded to Mr. Behrens’ January 31, 2003, letter and advised him “that drawdown modeling will not be included in Notices of Agency Action that you receive from the District. The only way that you will receive the drawdown modeling is if the District has records related to the modeling at the time you make a specific public records request for same. For example, if you make a public records request today for drawdown modeling, the District will only provide records to you that are in our files as of today. You would have to make a subsequent public records request to get any records that were received or created by the District after today’s date.” (Emphasis in original.) Ms. Gifford also advised Mr. Behrens that he was being provided with “copies of documents that are responsive to [his] public records request dated January 31, 2003.” Mr. Behrens was provided with a copy of the Has-Ben Groves General Water Use Permit Application which indicated, in part, that the application was “new” as opposed to a “renewal” or “modification”; the location of the well site; that Has-Ben Groves intended to irrigate 40 acres for citrus; and that the construction date of the well was in “1960.” The word “existing” is written on the line describing, in part, the casing diameter, depth, and pump capacity. See Finding of Fact The name “Phillippi” is handwritten on page one of the application. (Michael Phillippi is a professional geologist and employed with the District for over nine years. He had a pre- application telephone conversation with the applicant for the Has-Ben Groves WUP.) A “Water Use Permit Evaluation Worksheet” was also enclosed which included, among other information, the names “Lucille” and “Deborah” and the initials of two persons. The record does not indicate that Mr. Behrens followed up with the District regarding the Has-Ben Groves application after receiving the District’s February 10, 2003, letter and enclosures. On February 19, 2003, Mr. Behrens filed a Petition for Formal Hearing challenging the District’s preliminary decision to approve the WUP. The District determined that the Petition was timely filed, but not in substantial compliance with the requirements of Section 120.569(2)(c), Florida Statutes, and Florida Administrative Code Rule 28-106.201(2), governing the initiation of administrative proceedings. The District issued an Order of Dismissal Without Prejudice on February 27, 2003. On March 12, 2003, Mr. Behrens filed an Amended Petition for Formal Hearing. Mr. Behrens alleged that the withdrawal to be authorized by the WUP “would use huge quantities of water from the intermediate aquifer, even though water from the Floridan aquifer is completely suitable for citrus irrigation”; is “very close” to Mr. Behrens’ “property and well”; and the “cone of depression in the Intermediate aquifer that would be caused by the new use will cause a reduction in Petitioner’s water level and pressure and impair the ability of his well to produce water.” (Mr. Behrens also alleged that “[t]he proposed well would be eight inches in diameter, 920 feet deep, and cased to only 120 feet.” See Finding of Fact 15.) Mr. Behrens also alleged that the District refused to provide certain information, such as predicted drawdown to area wells. He also raised numerous disputed issues of material fact. On May 23, 2003, the District deposed Mr. Behrens. During his deposition, Mr. Behrens was asked to identify all facts and documents or sources of information he relied on in making the allegations in the Amended Petition. Mr. Behrens testified that the challenged water use withdrawal “seems like a very excessive amount”; “is [c]lose enough to have an impact on [his] well”; “is going to have a drawdown, is going to have an impact on the aquifer” and he has “a well on the aquifer”; that “these wells are going to have a drawdown and they’re going to draw down [his] well”; and that his position, that the Has-Ben Groves well will have a drawdown impact on his well, is based upon “[s]cience and facts and common sense” and “the evidence is self-evident.” Mr. Behrens has “done no studies.” Rather, he relies on information, such as the documents he introduced into evidence and his knowledge about the area and the District, to support the allegations in the Petition and Amended Petition. See, e.g., Findings of Fact 22-23. He does not have enough money to hire experts. He relies on the District’s hydrologists for the information he requests and for assurances. Yet, Mr. Behrens did not contact any District hydrologist to discuss his concerns before he filed the Petition and Amended Petition. See also Findings of Fact 26-28. On June 17, 2003, Mr. Behrens responded to the District’s Interrogatories, which requested Mr. Behrens to identify all facts he relied upon in making his assertions, including all documents prepared or reviewed in connection with such assertions. Mr. Behrens stated that no specific documents were prepared or reviewed in connection with his assertions made in paragraph 6 of the Amended Petition, and that the assertions in paragraph 6 were “pure truth – there’s no need to go searching to prove the obvious!” (Paragraph 6 of the Amended Petition alleged: “The proposed new groundwater withdrawal would use huge quantities of water from the Intermediate aquifer, even though water from the Floridan aquifer is completely suitable for citrus irrigation.”) During the final hearing, Mr. Behrens claimed that prior to filing his Petition, he relied on his experience and the information he maintains regarding the District’s identification of water use problems, and the District’s March 2000 Horse Creek Draft Resource Evaluation Report, the “Water Resources in Jeopardy” report published during the early 1990’s, and the 1992 Recommended Order in Alan R. Behrens, et al. v. Consolidated Minerals, Inc. and Southwest Florida Water Management District, et al., Case Nos. 92-0953-92-0957, 1993 WL 944120 (DOAH April 20, 1993; SWFWMD Nov. 30, 1994), in which Hearing Officer Daniel M. Kilbride found that Mr. Behrens was substantially affected by the District’s then proposed renewal and modification of an existing WUP held by Consolidated Minerals. 1993 WL 944120, at *4. (In interrogatory responses, Mr. Behrens also identified a 1986 potentiometric surface map of the Intermediate aquifer, among other maps he might identify.) These documents do not provide information relevant to whether the challenged Has-Ben Groves water withdrawal meets the conditions for issuance of a WUP or would lead a reasonable person to allege that the challenged Has-Ben Groves water use and well would have an adverse impact on Mr. Behrens’ use of his well. Before filing his initial Petition and during the interval before he filed his Amended Petition, Mr. Behrens did not contact or speak to District staff who reviewed the Has-Ben Groves WUP application or District staff in the Bartow Service Office (the District service office responsible for permitting matters in Hardee County) to obtain information concerning the Has-Ben Groves permit application or to discuss his concerns regarding whether the proposed water use to be authorized by the WUP would adversely affect his well. But see Finding of Fact 13, which indicates that on January 31, 2003, Mr. Behrens posed several questions to the District, prior to filing his Petition, which apparently were left unanswered. It appears Mr. Behrens did not pursue this inquiry until he served the District with Interrogatories on May 29, 2003. Mr. Behrens did not review the District’s “work file” after filing his Petition. In his Proposed Final Order (PFO), Mr. Behrens provided a detailed chronology and analysis of the factors he considered that caused him to file prior challenges to District action and his challenge to the District’s intent to approve the Has-Ben Groves WUP. He has mistrusted the District over time and has had little faith that the District understands his “unique circumstance” and will protect his well from adverse impacts resulting from the issuance of WUPs. See, e.g., (T. 95- 96, 98, 100.) He notes in his PFO that it was not until the Has-Ben Groves case that he “started to have trust in the District staff’s reliance on regional well monitoring data (as its sole source of cumulative impact analysis).” According to Mr. Behrens, the District provided him with information during discovery from which he derived reasonable assurances. He also felt that based on his experience, he “did not contact the permit reviewers in this matter because, from experience, he knew he could not trust them to provide the necessary assurances with a few comments over the telephone.” Yet, because of his financial inability to hire experts, Mr. Behrens relies on the expertise of the District’s hydrologists for assurance that his well will not be adversely impacted. See, e.g., (T. 112) (District Exhibit 13, pp. 41-42, 55, 58-61.) Stated otherwise, Mr. Behrens wanted the District staff to provide him with proof of reasonable assurance and he filed the Petition and Amended Petition because he felt he did not receive appropriate proof. If this final hearing went forward, his intent was to ask questions of the District’s hydrologists regarding many of the documents in his possession and to ask “District staff, under oath, about specific matters related to the protection of his well and the intermediate aquifer, in general,” presumably as he had done in the Basso and Boran cases, for example. See, e.g. (District Exhibit 13, p. 59-60.) Then, the ALJ, after hearing all of evidence, would decide whether reasonable assurance was provided. Prior to and after Mr. Behrens filed his Amended Petition, the District maintained Regional Observation and Monitoring Program (ROMP) wells that provide cumulative monitoring information concerning the Intermediate and Floridan aquifer water levels throughout the District. ROMP well data are available to the public upon request. (In response to a question posed by Mr. Behrens during the final hearing, Mr. Balser stated that ROMP well data do not give absolute assurance or reflect “[e]xactly what is happening in the geology under [Mr. Behrens] property.” Mr. Balser stated that he “would have to do testing of [his] property. But this is the best guess we can make looking at it from a regional view.”) It is more than a fair inference that Mr. Behrens was familiar with ROMP well data and their application in specific cases as a result of his participation in prior administrative cases. See pp. 4-5, supra. He did not request ROMP well data available from the District prior to filing his Petition and Amended Petition, although he asked for the quantity of groundwater which was expected to be withdrawn from the Intermediate and Floridan aquifers. See Conclusions of Law 48- 50. District WUP information and other records are available for public inspection, including the use and permitting history of the water withdrawal challenged by Mr. Behrens in this proceeding. If Mr. Behrens had inquired of the District prior to filing his Petition and Amended Petition, Mr. Behrens could have learned that the well on the Has-Ben Groves property had been in existence as early as the 1960’s for citrus irrigation, was first permitted around 1974, had previously been authorized by the District for withdrawals of as much as 77,000 gpd, was expected to draw approximately 94 percent of its water from the Upper Floridan aquifer, and there was no reasonable basis to conclude that withdrawals of 31,100 gpd from the Has-Ben Groves well would cause any adverse impact to his well, which draws water from the Intermediate aquifer. Stated otherwise, at the time he filed his Petition and Amended Petition, Mr. Behrens had no reasonable factual basis to allege that withdrawals of 31,100 gpd from the Has-Ben Groves’ well, located approximately 16 miles from his well, would have an adverse impact on his use of water from his well. (An applicant for a WUP is required to provide, in part, reasonable assurance that the water use “[w]ill not adversely impact an existing legal withdrawal.” Fla. Admin. Code R. 40D- 2.301(1)(i).) On June 30, 2003, Mr. Behrens filed a “Notice of Voluntary Dismissal” and responded, in part, to the District’s Motion for Summary Recommended Order, but not the District’s request for attorney’s fees and costs. Mr. Behrens stated that he withdrew his Amended Petition because he obtained information that he did not have when he filed his Amended Petition and that addressed his concerns about impacts to his well. He claimed, in part, that being informed of the District’s plan to set minimum levels for the Intermediate aquifer had allayed his fears that he would be without an artesian free-flowing water supply. However, the challenged WUP did not address or involve the setting of minimum flow levels. Based on the foregoing, Mr. Behrens did not make a reasonable inquiry regarding the facts and applicable law. Using an objective standard, an ordinary person standing in Mr. Behrens’ shoes would not have prosecuted this claim if a reasonable inquiry had been conducted. Stated otherwise, Mr. Behrens did not have a “reasonably clear legal justification” to proceed based on his limited inquiry. Mr. Behrens signed the Petition and Amended Petition for an “improper purpose.” The District’s Request for Sanctions The District proved that its lawyers expended approximately 98.8 hours in responding to the challenge brought by Mr. Behrens and that the District incurred $426.25 in costs. An hourly rate of $125.00 per hour is a reasonable rate. The hours expended by District lawyers were reasonable. The costs incurred were reasonable. The District requests that sanctions be imposed in the amount of $12,350.00 for attorney's fees and $426.25 in costs. For the reasons more fully stated in the Conclusions of Law, based on the totality of the facts presented, the imposition of a sanction against Mr. Behrens in the amount of $500.00 (for costs and a small portion of fees) is appropriate.
The Issue Whether Rules 40B-1.702(4); 40B-4.1020(12) and (30); 40B-4.1030; 40B-4.1040(1)(b) and (c); 40B-4.2030(4); 40B-4.3000(1)(a); 40B-4.3010; 40B-4.3020; 40B-4.3030; 40B- 4.3040; and 40B-400.103(1)(h), Florida Administrative Code, of the Suwannee River Water Management District, are an invalid exercise of delegated legislative authority for reasons described in the Second Amended Petition to Determine Validity of Rules.
Findings Of Fact Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. The District is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an Environmental Resource Permit (ERP) issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between the District and the Department (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the work of the district (WOD) impacts. Petitioner has not filed a permit application with the District regarding the project. It is Petitioner's position that to do so would be futile. The Challenged Rules The rules or portions thereof which are challenged in this proceeding are as follows: Rule 40B-1.702(4), Florida Administrative Code, reads as follows: (4) A works of the district permit under Chapter 40B-4, F.A.C., must be obtained prior to initiating any project as outlined in (3) above within a regulatory floodway as defined by the District. Rule 40B-4.1020(12) and (30), Florida Administrative Code, read as follows: (12) "Floodway" or 'regulatory floodway" means the channel of a river, stream, or other watercourse and adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the 100-year flood elevation more than a designated height. Unless otherwise noted, all regulatory floodways in the Suwannee River Water Management District provide for no more then one-foot rise in surface water. * * * (30) "Work of the district" means those projects and works including, but not limited to, structures, impoundments, wells, streams, and other watercourses, together with the appurtenant facilities and accompanying lands, which have been officially adopted by the governing board as works of the district. Works of the district officially adopted by the board are adopted by rule in Rule 40B-4.3000 of this chapter. Rule 40B-4.1030, Florida Administrative Code, reads as follows: The implementation dates of this chapter are as follows: January 1, 1986 for Rule 40B- 4.1040(1)(a) which requires persons to obtain surfacewater management permits. April 1, 1986 for Rule 40B- 4.1040(1)(b) and Rule 40B-4.3040 which require persons to obtain works of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Alapaha River and its floodway in Hamilton County, Florida; The Aucilla River and its floodway in Jefferson, Madison, or Taylor counties, Florida; The Suwannee River or its floodway in Columbia, Hamilton, Lafayette, Madison, or Suwannee counties, Florida; or The Withlacoochee River and its floodway in Hamilton or Madison counties, Florida. (c) July 1, 1986 for Rule 40B-4.1040(1)(b) or 40B-4.3040 which require persons to obtain work of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Santa Fe River and its floodway in Alachua, Bradford, Columbia, Gilchrist, Suwannee, or Union counties, Florida; or The Suwannee River and its floodway in Dixie, Gilchrist, or Levy counties, Florida. Rule 40B-4.1040(1)(b) and (c), Florida Administrative Code, reads as follows: (1) Permits are required as follows: * * * Works of the district development permit prior to connecting with, placing structures or works in or across, discharging to, or other development within a work of the district. When the need to obtain a works of the district development permit is in conjunction with the requirements for obtaining a surfacewater management permit, application shall be made and shall be considered by the district as part of the request for a surfacewater management permit application. Otherwise, a separate works of the district development permit must be obtained. Rule 40B-4.2030(4), Florida Administrative Code, reads as follows: (4) The new surfacewater management systems or individual works shall not facilitate development in a work of the district if such developments will have the potential of reducing floodway conveyance. (emphasis supplied) Rule 40B-4.3000(1)(a), Florida Administrative Code, reads as follows: The governing board is authorized to adopt and prescribe the manner in which persons may connect with or make use of works of the district pursuant to Section 373.085, Florida Statutes. Further, Section 373.019(15) provides that works of the district may include streams and accompanying lands as adopted by the governing board. In order to implement the non-structural flood control policy of the district, the governing board finds it is necessary to prevent any obstruction of the free flow of water of rivers and streams within the district. Therefore, the governing board does hereby adopt the following rivers and their accompanying floodways as works of the district: The Alapaha River and its floodway in Hamilton County, Florida; . . . . Rule 40B-4.3010, Florida Administrative Code, reads as follows: A general works of the district development permit may be granted pursuant to the procedures in Rule 40B-1.703 to any person for the development described below: Construction of a structure for single-family residential or agricultural use including the leveling of land for the foundation and associated private water supply, wastewater disposal, and driveway access which is in compliance with all applicable ordinances or rules of local government, state, and federal agencies, and which meets the requirements of this chapter. A general permit issued pursuant to this rule shall be subject to the conditions in Rule 40B-4.3030. Rule 40B-4.3020, Florida Administrative Code, reads as follows: Content of Works of the District Development Permit Applications. Applications for a general work of the district development permit shall be filed with the district and shall contain the following: Form 40B-4-5, "Application for General Work of the District Development Permit," Suwannee River Water Management District, 4-1-86, hereby incorporated by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the applicant or owner; Copies of all permits received from local units of government, state, or federal agencies, specifically a copy of the building or development permit issued by the appropriate unit of local government, including any variances issued thereto, and a copy of the onsite sewage disposal system permit issued by the Florida Department of Health and Rehabilitative Services under Chapter 10D- 6, Florida Administrative Code; A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon; and Any supporting calculations, designs, surveys, or applicable documents, which in the applicant's opinion, may support the application. Applications for individual or conceptual approval works of the district development permits shall be filed with the district and shall contain the following: Form 40B-4-4, "Application for Surfacewater Management System Construction, Alteration, Operation, Maintenance, and/or Works of the District Development", Suwannee River Water Management District, 10-1-85, hereby adopted by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the owner. General project information including: The applicant's project name or identification number; The project location relative to county, section, township, and range, or a metes and bounds description; The total project area in acres; The total land area owned or controlled by the applicant or owner which is contiguous with the project area; A description of the scope of the proposed project including the land uses to be served; A description of the proposed surfacewater management system or work; A description of the water body or area which will receive any proposed discharges from the system; and Anticipated beginning and ending date of construction or alteration. Copies of all permits received from, or applications made to, local units of government, state, or federal agencies. A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon. Any supporting calculations, designs, surveys, or applicable legal documents, which in the applicant's opinion, support the application. Copies of engineer or surveyor certifications required by this chapter. Rule 40B-4.3030, Florida Administrative Code, reads as follows: Conditions for Issuance of Works of the District Development Permits. The district will not approve the issuance of separate permits for development in a work of the district for any proposed project that requires a district surfacewater management permit pursuant to Part II of this chapter. For such projects, development in a work of the district may be authorized as part of any surfacewater management permit issued. The district will not approve the issuance of a works of the district development permit for any work, structures, road, or other facilities which have the potential of individually or cumulatively reducing floodway conveyance or increasing water-surface elevations above the 100-year flood elevation, or increasing soil erosion. The district will presume such a facility will not reduce conveyance or increase water-surface elevations above the 100-year flood elevation or increase soil erosion if: Roads with public access are constructed and laid out in conformance with the minimum standards of local government. Where roads are not required to be paved, the applicant must provide design specifications for erosion and sediment control. Where roads are required to be paved, swales will generally be considered adequate for erosion and sediment control; Buildings in the floodway are elevated on piles without the use of fill such that the lowest structural member of the first floor of the building is at an elevation at least one foot above the 100-year flood elevation; The area below the first floor of elevated buildings is left clear and unobstructed except for the piles or stairways; A permanent elevation monument is established on the property to be developed by a surveyor. The monument shall be adequate to establish land surface and minimum buildup elevations to the nearest 1/100 of a foot; No permanent fill or other obstructions are placed above the natural grade of the ground except for minor obstructions which are less than or equal to 100 square feet of the cross-sectional area of the floodway on any building or other similar structure provided that all such obstruction developed on any single parcel of land after the implementation date of this chapter is considered cumulatively; No activities are proposed which would result in the filling or conversion of wetlands. For any structure placed within a floodway which, because of its proposed design and method of construction, may, in the opinion of the district, result in obstruction of flows or increase in the water surface elevation of the 100-year flood, the district may require as a condition for issuance of a work of the district development permit that an engineer certify that such a structure will not obstruct flows or increase 100-year flood elevations. The following conditions shall apply to all works of the district development permits issued for development on lands subdivided after January 1, 1985: Clearing of land shall be limited [except as provided in (b) and (c) below] to that necessary to remove diseased vegetation, construct structures, associated water supply, wastewater disposal, and private driveway access facilities, and no construction, additions or reconstruction shall occur in the front 75 feet of an area immediately adjacent to a water. Clearing of vegetation within the front 75 feet immediately adjacent to a water shall be limited to that necessary to gain access or remove diseased vegetation. Harvest or regeneration of timber or agricultural crops shall not be limited provided the erosion of disturbed soils can be controlled through the use of appropriate best management practices, the seasonal scheduling of such activities will avoid work during times of high-flood hazard, and the 75 feet immediately adjacent to and including the normally recognized bank of a water is left in its natural state as a buffer strip. As to those lands subdivided prior to January 1, 1985, the governing board shall, in cases of extreme hardship, issue works of the district development permits with exceptions to the conditions listed in Rule 40B-4.3030(4)(a) through (c). The 75-foot setback in paragraphs (a) through (d) above shall be considered a minimum depth for an undisturbed buffer. The limitations on disturbance and clearing within the buffer as set out in paragraphs through (d) above shall apply, and any runoff through the buffer shall be maintained as unchannelized sheet flow. The actual depth of the setback and buffer for any land use other than single-family residential development, agriculture, or forestry shall be calculated in accordance with the methodology in: "Urban Hydrology for Small Watersheds", U.S. Department of Agriculture, Soil Conservation Service, Engineering Division, Technical Release 55, June 1986; and, "Buffer Zone Study for Suwannee River Water Management District", Dames and Moore, September 8, 1988, such that the post-development composite curve number for any one-acre area within the encroachment line does not exceed; a value of 46 for areas within the encroachment line with predominantly Class A soils; a value of 65 for areas within the encroachment line with predominantly Class B soils; a value of 77 for areas within the encroachment line with predominantly Class C soils; or a value of 82 for areas within the encroachment line with predominantly Class D soils. (emphasis supplied) Rule 40B-4.3040, Florida Administrative Code, reads as follows: Unlawful Use of Works of the District. It shall be unlawful to connect with, place a structure in or across, or otherwise cause development to occur in a work of the district without a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause an unpermitted development to be removed or permitted. It shall be unlawful for any permitted use to violate the provisions of Chapter 373, Florida Statutes, or this chapter, or the limiting conditions of a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause the unpermitted use to be removed or brought into compliance with Chapter 373, Florida Statutes, and this chapter. Damage to works of the district resulting from violations specified in Rule 40B-4.3040(1) and (2) above shall be repaired by the violator to the satisfaction of the district. In lieu of making repairs, the violator may deposit with the district a sufficient sum to insure such repair. Rule 40B-400.103(1)(h), Florida Administrative Code, reads as follows: (1) In order to obtain a standard general, individual, or conceptual approval permit under this chapter or chapter 40B-4, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: * * * (h) Will not cause adverse impacts to a work of the District established pursuant to s. 373.086. . . . Facts Based Upon the Evidence of Record History of the rules Mr. David Fisk is Assistant Director of the District. At the time of the hearing, he had been employed there for 26 and one-half years. He played a significant role in the rule adoption process of the rules that are the subject of this dispute. As part of that process, the District entered into a consulting contract with an engineering, planning, and consulting firm and consulted with the U.S. Corps of Engineers and the Federal Emergency Management Agency (FEMA), to conduct what are described as the FEMA flood studies. Additionally, the district commissioned an aerial photography consultant who provided a series of rectified ortho photographs of the entire floodplain of the rivers within the District, and a surveying subcontractor who provided vertical control and survey cross sections and hydrographic surveys of the rivers. The District also worked in conjunction with the United States Geological Survey to accumulate all of the hydrologic record available on flooding. The information was given to the U.S. Army Corps of Engineers who, operating under FEMA guidelines for conducting flood insurance rate studies, performed the analytical and computer modeling work to identify the flood plains and floodway boundaries. The District used the amassed knowledge of maps, cross sections and surveys that were developed as part of the FEMA flood studies as technical evidence or support for the adoption of the works of the district rules. Following a series of public workshops and public hearings in 1985, the rules were adopted and became effective in 1986. None of the rules were challenged in their proposed state. The District adopted the floodways of the Suwannee, Santa Fe, Alapaha, Aucilla, and Withlacoochee Rivers as works of the district. According to Mr. Fisk, the District adopted the rules pursuant to Section 373.086, Florida Statutes, which provided authority to the District to adopt district works and Section 373.085, Florida Statutes, which provided authority to regulate activities within those works. The Floodway Line Petitioner hired Mr. John Barnard, a professional civil engineer, with extensive environmental permitting experience, to look at the floodway and floodplain issues associated with Petitioner's site and project. Mr. Barnard conducted an engineering study entitled, "Floodplain Evaluation." It was Mr. Barnard's opinion that FEMA's determination of the floodway line was less than precise. Mr. Barnard used FEMA's data regarding the base flood elevation but manually changed the encroachment factor resulting in his placement of the floodway line in a different location than determined by FEMA. Mr. Barnard acknowledged that different engineers using different encroachment factors would reach different conclusions.1/ Respondent's expert in hydrology and hydraulic engineering, Brett Cunningham, noted that the definition of floodway in Rule 40B-4.1020(12), Florida Administrative Code, is essentially the same definition that used is in the FEMA regulations and which also is commonly used across the country in environmental rules and regulations. Mr. Barnard also acknowledged that the District's definition of "floodway", as found in Rule 40B-4.1020(12), Florida Administrative Code, is fairly commonly used by environmental regulatory agencies. Moreover, it was Mr. Cunningham's opinion that the Alapaha River is a stream or watercourse within the meaning of the rule and its floodway an accompanying land. In Mr. Cunningham's opinion, the FEMA flood insurance studies are widely used across the country for a variety of reasons and are typically relied upon by hydrologists and engineers to locate floodways. The definition of "works of the district" in Rule 40B-1020(30), Florida Administrative Code, is taken directly from the language found in Section 373.019(23), Florida Statutes. The statutory definition includes express references to streams and other watercourses, together with the appurtenant facilities and accompanying lands. Petitioner alleges that the phrase "will not cause adverse impact to a work of the SRWMD" as found in Rule 40B- 400.103(1)(h) is not clear because it does not identify what specific adverse impacts are being reviewed. While Petitioner's expert, Mr. Price, was not clear as to what the phrase means, Respondent's expert, Mr. Cunningham, understood the meaning of the phrase and noted that "adverse impact" is a phrase which is very commonplace in the rules and regulations of environmental agencies and is attributed a commonsense definition. The expert engineers differed in their opinions as to the meaning of the term "potential for reducing floodway conveyance" as used in Rule 40B-4.2030(4), Florida Administrative Code. According to Petitioner's expert engineer, Mr. Barnard, "potential for reducing floodway conveyance" is not a specific term that is open to interpretation as an engineer, and that he cannot quantify what constitutes "potential." Respondent's expert, Mr. Cunningham, understood the meaning of the phrase to be any increase in floodway conveyance. It was his opinion that there was nothing about that phrase to cause confusion. Rule 40B-4.3030, Florida Administrative Code, addresses conditions for issuance of works of the district development permits. Petitioner's expert Mr. Price testified that there is no quantification to what constitutes an "increase in soil erosion" as referenced in subsection (2) and linked the reference of soil erosion to a 100-year flood event referenced in the same subsection. Mr. Cunningham was of the opinion that there is no need to quantify an increase in soil erosion in the rule. He noted that soil erosion is used in a common sense manner and that attempting to put a numerical limit on it is not practical and "it's not something that's done anywhere throughout the country. It's just not something that lends itself to easy quantification like flood stages do". Mr. Cunningham's opinion that the words and phrases which Petitioner asserts are vague are words of common usage and understanding to persons in the field is the more persuasive testimony. This opinion is also consistent with statutory construction used by courts which will be addressed in the conclusions of law.
The Issue The issue is whether to approve an application by Respondent, I.M. Collier, J.V. (Collier), to modify its Environmental Resource Permit (ERP) No. 11-02031P (2002 Permit) by changing the surface water management system (SWMS) for a proposed residential and golf course development in Collier County (County), Florida, known as Mirasol.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties National Audubon Society, Inc. is a not-for-profit corporation (incorporated outside the State of Florida) while Collier County Audubon Society, Inc., Florida Wildlife Federation, and Conservancy of Southwest Florida are Florida not-for-profit corporations. All are environmental organizations. Franklin Adams is a resident of the County and a member of each of the above organizations. Respondents have not contested Petitioners' standing based upon the stipulated facts set forth in the parties' Pre-Hearing Stipulation. The District is a water management district with the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Title 40E. Collier is the holder of the 2002 Permit authorizing the construction of a SWMS to serve the Mirasol project, a large development located in the County. The parties have stipulated that Collier has the administrative, legal, and financial capabilities to undertake the proposed activity. Fla. Admin. Code R. 40E-4.301(1)(j). The Project Site The Mirasol project consists of approximately 1,713.45 acres located on the north side of Immokalee Road and the Cocohatchee Canal (Canal) in the northern half of the County, approximately three miles east of the intersection with Interstate 75. The property spans three sections of land, the northern third of the property encompassing Section 10, the middle third encompassing Section 15, and the southern third encompassing most of Section 22. The site also includes a peninsula of land extending east of Section 10, encompassing the northernmost quarter of Section 11. The site is bounded on the south by the Canal and Immokalee Road and on the east by an existing residential development known as Heritage Bay, which was previously a rock- mining quarry. To the west of the site, running north to south, are two other proposed residential developments known as Parklands Collier and Terafina/Saturnia Falls and an existing residential and golf course community known as Olde Cypress. There are other existing and proposed residential developments and farm fields to the north of the site. The site is located southwest of the Corkscrew Swamp Sanctuary (Corkscrew Swamp), which is owned by the National Audubon Society, Inc., and appears to stretch from Immokalee (in the northeastern part of the County) south and southwestward through parts of the County. Corkscrew Swamp sits roughly at the center of a 315-mile watershed, much of which is comprised of short hydroperiod wetlands which dry down completely during the late winter and spring and become inundated again in the late summer and fall during the wet season. This water gradually sheet flows down a very slight downhill gradient toward the south and west. A portion of the sheet flow travels southwest in the vicinity of the site. The region has experienced occasional floods, the most severe of which occurred in 1995. At the direction of the District, the cause of the flooding was investigated in the South Lee County Watershed Study (Study), which concluded that the watershed discharges through a variety of outfalls, but that historic connections to downstream conveyances like the Canal were severed by the construction. While downstream conveyances exist, the Study concluded that connections between upstream flows and downstream conveyances should be enhanced or restored. In the late 1990s, the Canal was improved to increase its conveyance capacity. A berm was constructed by the Big Cypress Basin Board (Basin Board), a legislatively-created entity which manages water resources in the County, on the northern bank in the vicinity of, and across from, the Mirasol site. This berm prevented historic wet season sheet flow from reaching the Canal through the project site, except for a few culverts located along that water body. The Basin Board also built a 1,000-foot-long hardened concrete weir on the north side of the Canal a few thousand yards west of the project site. This weir provides the primary outlet for sheet flow in and around the Mirasol site. Currently, upstream drainage flows in a southwesterly direction across Section 10. As the water moves south to the Canal, the flow becomes constricted down to a 580-foot wide gap between the Olde Cypress residential development and commercial developments along Immokalee Road to the east. This constricted area further narrows to a 270-foot wide opening before the sheet flow reaches the 1,000-foot weir and discharges into the Canal. During a 3-day, 25-year storm event, a combined peak flow of 553 cubic feet per second (cfs) of water is discharged into the Canal through the 1,000-foot weir, but the Mirasol property only conveys a small portion of this water (around 20 cfs) through culverts in the Canal berm. Most of the water flows to the west of Mirasol where it passes through the narrow gap and over the 1,000-foot weir. Around 1,431 acres of the 1,714-acre site are jurisdictional wetlands. However, these wetlands are in poor condition due to existing impediments to sheet flow, artificially high water levels during the wet season, and heavy infestation of exotic species, principally melaleuca. Permit History In February 2002, the District issued the 2002 Permit approving the construction of a SWMS to serve two 18-hole golf courses, a single-family residential community, a golf course clubhouse and parking area, golf course maintenance facilities, sales facility, and parking area. The issuance of the 2002 Permit was not challenged. The SWMS included a 36.5-acre flow-way (Flow-Way) that encircled the northern boundary of the development in Section 15 and extended off-site and across adjacent properties to the west. (If constructed, the Flow-Way would be a 200-foot wide, 4-foot deep, 89-acre channel, more than half of which would have been located on the Saturnia Falls/Terafina and Olde Cypress properties.) Besides providing a conveyance function for the Mirasol site, the Flow-Way also enhanced flood protection for other properties by accelerating conveyance of floodwaters to the Canal and reducing peak flood stages by 0.4 feet during a three-day, 25-year storm event. The District included Special Condition 26 in the 2002 Permit, which required construction of the Flow-Way before the remainder of the project could be constructed. The 2002 Permit authorized Collier to directly impact (fill or excavate) 568.66 acres of wetlands within the footprint of the development. Additionally, 39.5 acres of wetlands, which were isolated remnant strips along the golf courses within the development, were considered secondarily impacted and assessed a thirty-three percent reduction in functional value. Mitigation for the project consisted of preservation and enhancement of wetlands and uplands on site. Enhancement of the preserve areas was primarily credited to the eradication of malaleuca and other exotic species and replanting with appropriate native vegetation. Permit conditions required management of the preserve areas to prevent a recurrence of exotic species. The preserve areas included an 846.95-acre external preserve area to the north and northeast of the area to be developed. It was anticipated that this northern preserve area would ultimately be donated to an existing mitigation area known as the Corkscrew Regional Ecosystem Watershed, along with an interest-bearing fund to ensure perpetual management. In December 2005, the United States Army Corps of Engineers (Corps) denied Collier's federal wetlands permit application for the project and the Flow-Way. Because of this denial, in May 2006 Collier submitted an ERP application with the District seeking to modify the 2002 Permit by revising the SWMS and removing the Flow-Way. On October 12, 2006, the District Governing Board approved a modification to the 2002 Permit, which authorized an alternate SWMS to serve the golf course and residential development (2006 Permit). Petitioners' challenge to the proposed modification followed. The 2006 Modification Because of the Corps' denial of its application, Collier was required to remove the Flow-Way and redesign the project's SWMS. The most substantial change in the project was the removal of the Flow-Way and associated control structures and its replacement with a series of interconnected lakes running from north to south through the property allowing for the pass-through of surface waters from the area north of the development site into the Canal. The modification does not alter the boundaries and location of the development. However, the revised SWMS includes: five controlled basins with a total area of 718.43 acres, each of which provides treatment of stormwater prior to discharging into the pass-through system; 45.16 acres of interconnected lakes serving as a pass-through for surface waters from the north; 2.12 acres of perimeter berm backslope/ buffers/spreader swales; and 7.27 acres along the Canal for the existing 100-foot wide canal easement and proposed canal contouring. These changes also required elimination of the 39.5 acres of remnant wetlands inside the development that had previously been assessed as secondarily impacted. Also, there were 0.68 acres of additional impacts resulting from slight changes in the internal site design due to the SWMS. To partially offset these impacts, the internal wetland preserves were enlarged by 13.32 acres. The remaining impacts were mitigated with mitigation credits from the Panther Island Mitigation Bank (PIMB). (The PIMB holds a mitigation bank permit issued by the District for a wetland restoration project in Southwest Florida.) The main preserve was left unchanged, except that 36.5 acres previously dedicated to construction of the Flow-Way will be added to the main preserve and similarly enhanced and preserved. In summary, as modified under the 2006 Permit, the total onsite mitigation consists of the preservation and enhancement of 830.89 acres of wetlands, preservation of 109.58 acres of uplands, and the purchase of a total of 5.68 credits from the PIMB. At hearing, Collier also agreed to purchase from the PIMB an additional 5.68 credits within the Basin for a total of 11.36 credits. The ERP Permitting Criteria To obtain an ERP, an applicant must satisfy the conditions in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. The first rule focuses primarily on water quantity, environmental impacts, and water quality, while the second rule generally requires that a public interest balancing test be made, that cumulative impacts, if any, be considered, and that the District consider past violations, if any, by the applicant of District or Department of Environmental Protection (DEP) rules. (The parties have cited no prior violations by the applicant that should be considered.) Besides these two rules, a number of BOR provisions which implement the rule criteria must also be taken into account. If an applicant proposes to modify an existing ERP, as it does here, Florida Administrative Code Rule 40E-4.331(2)(a) comes into play and requires that the District review the application to modify the ERP "using the same criteria as new applications for those portions of the project proposed for, or affected by, the modification." Under this rule, those portions of the project altered or affected by the modification are reviewed under the current ERP criteria, but otherwise the 2002 Permit is not the subject of review in this case. Therefore, the District's review includes only that portion of the existing permit that is proposed to be modified or affected by the modification. In this case, the 2006 design is very similar to the 2002 design, and the project's footprint, control elevations, roadway network, southern outfall, and main preserve are unchanged. However, as pointed out below, since most of the engineering-related components of the SWMS were affected by the Flow-Way's removal, the District reassessed the hydrologic components of the internal water management system and the pass- through lake system for levels of flood protection and water quality treatment. Because most of the engineering-related components of the SWMS for the project were modified as a result of the removal of the Flow-Way, the District staff reassessed the project's hydrologic calculations associated with levels of flood protection and reassessed the project's water quality treatment volumes applying the currently existing ERP criteria. As to wetland impacts and mitigation, review of the wetland impacts for the 2006 Permit was limited to an analysis of additional wetlands impacts associated with the modification. This was primarily the elimination of the previously permitted, secondarily impacted wetlands. Thus, only the additional wetlands impacts due to the revised SWMS are considered under the currently existing ERP criteria. The 2006 Permit made only slight changes to the project's wetland impacts and mitigation components authorized under the 2002 Permit. The project's footprint was not changed and the main mitigation area (the Northern Preserve) was unaffected by the changes except that 36.50 acres were actually added to that preserve as a result of the removal of the Flow- Way. Collier did not receive any credit in its mitigation analysis for the additional acreage that will become part of the preserve due to the removal of the Flow-Way. Surface Water Management Criteria As noted above, the ERP criteria in Florida Administrative Code Rule 40E-4.301 focus primarily on three areas of concern: water quantity, environmental impacts, and water quality. Related BOR provisions must also be considered. These areas of concern are discussed below. Water Quantity Florida Administrative Code Rule 40E-4.301(1)(a) requires that an applicant provide reasonable assurance that the construction of a SWMS "[w]ill not cause adverse water quantity impacts to receiving waters and adjacent lands." BOR Section 6.2 implements that provision and requires that a project be designed so that it is consistent with the downstream carrying capacity of the receiving waters. In other words, it must not exceed the capacity of downstream receiving waters, which in this case is the Canal. In making this determination, Section 6.3 of the BOR requires that the 25-year, 3-day design storm event be used. Collier complied with this requirement through an extensive hydrologic study conducted by its expert, Richard S. Tomasello, a former District employee. Applying a hydrologic model simulation known as S2DMM, the witness determined the appropriate amount of upstream sheet flow that would need to be routed through the project to avoid adverse water quantity and flooding impacts and calculated the correct dimensions of the intake weir to admit that flow into the project's pass-through system. The S2DMM model is a combination of other accepted models including the Sheet 2d, Massmod, and MBR models, which were developed by Mr. Tomasello, and they have been evaluated and used by the District on numerous occasions. In addition, the S2DMM model has been used for other flood studies in Collier and Lee Counties, and it will be used on a restoration project in Martin County. Based upon Mr. Tomasello's analysis, Collier incorporated a 100-foot-long intake weir with a crest elevation of 14.95 NGVD (National Geodetic Vertical Datum) along the northern boundary of the project to maintain existing upstream water elevations. Collier also complied with BOR Section 6.3, which requires the use of a 25-year, 3-day storm event to be used when computing the discharge rate for the project. The modified intake weir on the northern boundary includes two 3.5-foot wide rectangular notches set at an elevation of 14.00 NGVD, which will provide a "base flow" of up to 20 cfs into the pass-through lakes to mimic the current flow through the property. The determination of this base flow was made through an analysis of the existing culverts at the southern end of the property. While not required by the ERP criteria, Collier also performed a long-term analysis (using a four-year period of record) of the SWMS's effect upon water levels. This analysis demonstrated that the modified system would leave water levels in the wetland areas upstream of the project unchanged during normal rainfall and low-flow periods. This analysis provides additional assurances that the modifications to the SWMS will not affect the Northern Preserve. While Petitioners questioned the accuracy and reliability of the hydrologic study, and its specific application to this project, the criticisms are considered to be vague and unsubstantiated. As noted above, the model has been previously accepted for use in South Florida, and Petitioners' expert conceded he did not have enough information to determine the model's accuracy. The more persuasive evidence established that the hydrologic study submitted by Collier included the relevant available data and was prepared by competent professionals knowledgeable in the field. The claim of Petitioners' experts that they lacked sufficient information to form an opinion on the accuracy of the modeling is not a sufficient basis to overcome the evidence submitted by Collier to meet this criterion. The project's discharge rate in 2006 will not exceed what was permitted in the 2002 Permit. During the 25-year, 3-day storm event, the existing discharge from the project site and the natural area west of the project site into the Canal is 553 cfs. Based on modeling of the modified SWMS, the total discharge from the pass-through system will be 529 cfs, or 24 cfs less than the project's existing pre-development discharge. The discharges resulting from the project as modified in 2006 will not exceed the capacity of the Canal as required by Section 6.3 of the BOR. Accordingly, Collier has provided reasonable assurance that the discharge rate allowed for its project would not be exceeded, as required in Section 6.2 of the BOR. Section 6.8 of the BOR requires that a project allow the passage of drainage from offsite areas to downstream areas, which is necessary to demonstrate that off-site receiving water bodies are not being adversely affected. Collier complied with this provision by conducting the hydrologic analysis using the 25-year, 3-day design storm event, which demonstrated that the discharge rate would be directed to the southern discharge point allowing for the passage of drainage from offsite areas to the downstream areas. The evidence also shows that the current predominant sheetflow from areas outside the project passes through a narrowly constricted area west of the project and discharges into the Canal over an existing concrete weir. See Finding of Fact 9, supra. Only a small portion of the upstream waters currently discharge through the Mirasol site. Petitioners' allegation that the construction of the project will further constrict the sheetflow area is rejected, as the constriction of sheetflow will continue to exist whether the project is built or not. The evidence also shows that the project will not further constrict the flow because it will allow for the pass-through of water from outside the project area. Under the 2002 Permit, the Flow-Way was designed to aid in the diversion of upstream flows around the project. Under the 2006 modifications, the pass-through lake system will convey up to forty percent of the upstream flow through the development which complies with the provisions of Section 6.8 of the BOR. As indicated above, during periods of lower water levels, the notches in the weir along the northern boundary will allow for the flow to pass onto the project site consistent with existing conditions. During major storm events, water will pass over the weir into the pass-through lake system to be conveyed to the Canal. Therefore, Collier has provided reasonable assurance that the criteria in Section 6.8 have been met. Section 6.10 of the BOR requires that the project be designed to conserve water and site environmental values and not lower the water table or groundwater or over-drain wetlands. Section 6.11 of the BOR provides that the control and detention elevations for the project must be established at elevations to accomplish the objectives of Section 6.10. The latter section is adhered to when the control elevations proposed for a project are established consistent with the onsite wetland conditions. In this case, the control elevations for the wetlands and surface water management lakes are essentially the same as the design in the 2002 Permit. Collier has set the control elevations above the average wet season water table (WSWT) for the area, thereby ensuring that the SWMS will not over-drain and will conserve fresh water. Section 6.11 of the BOR addresses Detention and Control Elevations which are intended to assist in complying with the provisions of Section 6.10. The SWMS design control elevation maintains the detention component and the control (wetland protection) elevations in the previously approved SWMS. The control elevations were set by the design engineers in consultation with Collier's wetland ecologist taking into account the ground elevations and biological indicators. The control elevation for the pass-through system and internal drainage basins work in conjunction with the control elevation along the northern boundary of the project and the control elevation for the discharge point along the southern boundary to ensure that the project does not overdrain the wetlands and to preserve the project site's environmental values. By setting the control elevation above the WSWT, the design ensures that the wetlands will not be drawn down below the average WSWT and the SWMS will not over-drain them. Section 6.10 also requires that a project not lower water tables so that the existing rights of others would be adversely affected. Again, based on the control elevations, the water table is not expected to be lowered so there should be no effect on the existing rights of others. Collier must further demonstrate that the site's groundwater recharge characteristics will be preserved through the design of the SWMS. Collier complied with this requirement by setting the control elevations above the average WSWT, allowing standing water in the wetland preserves to recharge the groundwater. The ability of the SWMS to accept flows from the Northern Preserve conserves freshwater by preventing that water from being discharged downstream. The SWMS leaves water elevations in the Northern Preserve unchanged. Consequently, water will remain in the wetlands for the same duration and elevations as in the existing conditions, thereby preserving groundwater recharge characteristics. Section 6.12 of the BOR prohibits lake designs that create an adverse gradient between the control elevations of the lakes and the adjacent wetlands. To satisfy this requirement, Collier set all control elevations at 13.4 - 13.5 NGVD while controlling the internal wetland preserves at a slightly higher elevation. Consequently, there is no adverse gradient and no potential for an adverse effect upon the internal preserves from adjacent lakes. Petitioners argued that the pass-through system would quickly lower water levels in the internal wetland preserves. However, the internal wetlands are still protected from drawdown because there are control structures set at or above the wet season elevation between the pass-through lakes and internal wetlands. They also argued that the internal wetlands would be overdrained during the dry season by the deep lakes. However, no witness presented any real analysis to back up this contention. Indeed, the pass-through lakes are only twelve feet deep, and the wetlands are separated from all the lakes by protective berms to avoid any drawdown. In summary, Collier has provided reasonable assurances that the proposed modification in the 2006 Permit will not cause adverse water quantity impacts to receiving waters or adjacent lands and will not exceed the capacity of the downstream receiving waters (the Canal). Flooding Florida Administrative Code Rule 40E-4.301(1)(b) requires Collier to demonstrate that the project "[w]ill not cause adverse flooding to on-site or off-site property." BOR Section 6.4 sets forth criteria and standards for implementing this requirement and provides that building floors be designed to be protected from a 100-year, 3-day storm event. BOR Section 6.5 provides criteria and standards for flood protection for the project's roads and parking lots. Collier complied with these provisions by providing construction plans demonstrating that the building floors and roads will be built higher than the 100-year, 3-day storm event. BOR Section 6.6 provides that a project may not result in any net encroachment into the 100-year floodplain. Collier was also required to comply with the historic basin provision in Section 6.7 of the BOR, which requires the project to replace or otherwise mitigate the loss of historic basin storage provided by the site. The level of encroachment into the 100-year flood plain and loss of historic basin storage attributed to the project are essentially unchanged from the 2002 design. The only difference between the 2002 Permit and the 2006 Permit is how the conveyance of flood water is provided. In 2002, the Flow-Way served this function, while the pass-through system provides it in the 2006 Permit. Collier's flood simulations demonstrated that the project will not alter flood stages during the 25-year and 100- year design storms, while the testimony of witnesses Tomasello and Waterhouse established that the project will not have adverse flooding impacts on adjacent properties, either alone or in conjunction with neighboring developments. Storage and Conveyance Florida Administrative Code Rule 40E-4.301(1)(c) requires that an applicant demonstrate that the proposed development "[w]ill not cause adverse impacts to existing surface water storage and conveyance capabilities." This criterion is closely related to paragraph (1)(b) of the same rule, which prohibits adverse flooding to onsite or offsite property. Section 6.6 of the BOR implements this provision and specifies the parameters for applying this criterion and prohibits a net encroachment between the WSWT and the 100-year event which will adversely affect the existing rights of others. Collier addressed this criterion through the hydrologic analysis submitted. As previously found, that model is the appropriate model to determine flood stages and to calculate the floodplain. Engineering Design Principles Florida Administrative Code Rule 40E-4.301(1)(i) requires an applicant to provide reasonable assurances that the SWMS "[w]ill be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Section 7.0 of the BOR contains the specific standards and criteria to implement this rule. The evidence demonstrates that the SWMS is based on generally accepted engineering and scientific principles and is capable of performing and functioning as proposed. Section 8.0 of the BOR includes various assumptions and information regarding the design of the SWMS. By incorporating these assumptions into the design, Collier complied with Section 8.0. Water Quality Impacts Florida Administrative Code Rule 40E-4.301(1)(e) requires that the proposed modification "[w]ill not adversely affect the quality of the receiving waters such that the water quality standards set forth in Chapters 62-4, 62-302, 62-520, 62-522 and 62-550, F.A.C., including any antidegradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62- 4.242(2) and (3), and Rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated." Stated more plainly, the proposed modifications must not adversely affect the quality of the Canal's waters such that State water quality standards will be violated. Section 5.2 of the BOR describes the District's standard water quality criteria. This provision, which requires a minimum of one-inch detention of stormwater, is referred to as a "presumptive criteria" because it is presumed that if an applicant provides the required one inch of detention, it meets Class III water quality standards, thereby satisfying the rule. As it did under the 2002 Permit, Collier satisfies the presumptive criteria with the 2006 design by providing the one- inch wet detention in its lake system. In fact, the system is designed to provide one and a half inches of treatment in the lake system thereby providing additional treatment. The receiving body of water for the project is the Canal. When the 2002 Permit was issued, the Canal was classified as a Class III water body. It is now classified by DEP as impaired for iron and dissolved oxygen. Because of this new classification, Collier must now comply with Section 4.2.4.5 of the BOR, which reads as follows: If the site of the proposed activity currently does not meet water quality standards, the applicant must demonstrate compliance with the water quality standards by meeting the provisions in 4.2.4.1, 4.2.4.2, and 4.2.4.3, as applicable, and for the parameters which do not meet water quality standards, the applicant must demonstrate that the proposed activity will not contribute to the existing violation. If the proposed activity will contribute to the existing violation, mitigation may be proposed as described in subsection 4.3.1.4. Collier demonstrated that neither short-term (during construction) nor long-term (during operation) water quality impacts will occur. It complied with the short-term requirements by submitting a Construction Pollution Prevention Plan detailing how water quality will be protected during the construction process. As to long-term impacts, the Terrie Bates Water Quality Memorandum (Bates Memo) prepared by District staff on June 11, 2004, provides guidance on the implementation of Section 4.2.4.5 for projects which discharge into an impaired water body. The document sets forth a number of design and operational criteria for the types of additional measures that can be incorporated into a project design to provide the necessary reasonable assurance. The Bates Memo suggests that an additional fifty percent of treatment be incorporated into a SWMS. Collier complied with this suggestion by designing the treatment lakes to provide an additional one-half inch of treatment for the additional fifty percent treatment. In addition to the one and one-half inch treatment, Collier is implementing six of the seven items the Bates Memo lists as potential options to consider. The long-term water quality requirement is addressed by Collier, in part, through an Urban Stormwater Management Plan, which details various source controls or best management practices to be implemented once the project is built and operating. Best management practices assist in ensuring that pollutants will not enter into the lake system. Collier is also implementing a stormwater pollution prevention plan and will utilize the lake system for additional treatment downstream. Collier has further agreed to planting the littoral zones as part of its design of the treatment lakes to provide additional pollutant removal. The design calls for an amount of littoral zones equal to twenty percent of the surface area of the treatment lakes. Collier has agreed to make a Water Quality Monitoring Plan a permit condition, even though such a condition was not included in the staff report. See Collier Exhibit 25. The Bates Memo includes as an option for meeting the long-term requirement a site-specific water quality evaluation of pre vs. post-development pollutant loadings. Collier has presented several such analyses, all of which indicate the post- development pollutant discharges from the site will be less than the pre-development. Mr. Barber prepared a pre vs. post- analysis using a 2003 methodology developed by Dr. Harper. The 2003 version of the Harper methodology is currently accepted by the Corps. (Although Petitioners' witness, a former Corps employee, suggested that the Corps' acceptance of the study was a "political" rather than a scientific decision, there is insufficient evidence to support this contention.) Besides his first analysis, at the direction of the District staff, Mr. Barber prepared a second analysis using the 2003 methodology with certain conservative assumptions that limited the pollutant residents time to fifty days and utilized lower starting concentrations for phosphorous and nitrogen than were recorded in the nearby monitoring stations. Based upon those reports, the District's staff concluded that Collier had provided reasonable assurances that the project met the criteria in BOR Sections 5.2 and 4.2.4.5. At the hearing, Mr. Barber presented a third analysis utilizing an updated methodology developed by Dr. Harper in February 2006. The 2006 methodology was developed after Dr. Harper conducted a study of water management district criteria throughout the state for DEP. All three of the analyses prepared by Mr. Barber concluded that the project would discharge less nitrogen and phosphorous into the receiving body in the post-development condition than is currently being discharged in the pre-development condition. In addition to the three water quality submittals from Mr. Barber, Collier provided an additional water quality analysis specific to the project prepared by Dr. Harper. See Collier Exhibit 26, which is commonly referred to as the Harper Report. The analysis evaluated the project's pre vs. post- development water quality loads and also concluded the project would not contribute to the impairment of the Canal. In preparing his analysis, Dr. Harper relied solely on the lakes for estimating removal of pollutants without accounting for any of the additional treatment expected to occur from the source control best management practices contained in the Urban Stormwater Management Plan, which means his report errs on the conservative side. The Harper Report concluded that iron discharges from the SWMS would be extremely low and substantially less than the Class III standard of 1 mg/L. Petitioners presented no specific evidence to counter these conclusions. Petitioners questioned the Harper Report's use of wetlands as part of the loading calculations and attacked his underlying methodology. However, the evidence is clear that wetlands contribute to the water quality constituents in the pre-development condition. This finding is based on data from monitoring stations located in the middle of Corkscrew Swamp, a statewide study on stormwater treatment and wetlands, and the United States Environmental Protection Agency's (EPA) assignment of nutrient loading rates to wetlands in its regional pollutant loading model. Ignoring the actual water quality in pre-development conditions would not be a true pre vs. post-development analysis. Finally, Petitioners' contention that the Harper methodology should not be considered as admissible evidence because it constitutes "novel" (and therefore unreliable) scientific evidence under the rationale of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), has been rejected. To begin with, the Frye test has not been accepted in Florida administrative proceedings. Moreover, the methodology is the basis for a new statewide rulemaking effort, has been accepted by the EPA, the Corps, and by the Division of Administrative Hearings in at least two proceedings, and has been subjected to two peer reviews. Petitioners also alleged that Collier failed to show that it complied with Florida Administrative Code Rule 62- 40.432(2)(a)1., a rule administered by DEP which requires that a new SWMS "[a]chieve at least 80 percent reduction of the average annual load of pollutants that would cause or contribute to violations of state water quality standards." However, this is a broad overstatement of DEP's rule. Also, there is no eighty percent removal efficiency requirement adopted or incorporated into any District rule or BOR criteria. See, e.g., Conservancy of Southwest Florida, Inc. v. G.L. Homes of Naples Associates II, LTD et al., DOAH Case No. 06-4922 (DOAH May 15, 2007, SFWMD July 11, 2007). Instead, the District's "presumptive criteria" is that one inch of volumetric treatment required in Section 5.2 of the BOR meets the Class III standards. If, as in this case, additional assurances are required, those assurances are met through implementation of the BOR Section 4.2.4.5. Finally, Florida Administrative Code Rule 62-40.110(2) provides that Rule Chapter 62-40 is "intended to provide water resource implementation goals, objectives, and guidance for the development and review of programs, rules, and plans relating to water resources." Also, Florida Administrative Code Rule 62- 40.110(4) states that "[t]his chapter, in and of itself, shall not constitute standards or criteria for decisions on individual permits. This chapter also does not constitute legislative authority to the Districts for the adoption of rules if such rules are not otherwise authorized by statute." Even if an eighty percent reduction standard applied, Collier has demonstrated that the project very likely will remove eighty percent or more of pollutants when additional low-impact development techniques, pollutant source reduction practices, and additional uncredited wet and dry detention capacity are considered. Based upon the evidence presented, Section 4.2.8 of the BOR regarding cumulative impacts for water quality is not applicable in this case. Collier's submittals provide reasonable assurances that the project will not be contributing to the water quality impairment of the Canal or contribute to any other water quality violation. Indeed, the information submitted indicates there will be an incremental improvement in the post-development condition as compared to existing. Since no contribution or impacts to water quality are expected, a cumulative impact analysis is not necessary to assess the extent of the impacts. The combination of all these water quality measures, when taken together, demonstrates that the 2006 Permit will not adversely affect the quality of receiving waters such that state water quality standards will be violated. Therefore, reasonable assurance has been given that Florida Administrative Code Rule 40E-4.301(1)(e) will be satisfied. Wetland Impacts Florida Administrative Code Rule 40E-4.301(1)(d) requires Collier to provide reasonable assurance that the modification of the SWMS "[w]ill not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." In determining whether this criterion has been satisfied, it is also necessary to determine whether any 2002 permitted impacts should be subject to a second review in this case. Mitigation is a method by which an applicant can propose to impact certain wetlands on the project site in exchange for providing compensation in the form of preserving, enhancing, restoring, or creating wetlands or uplands to offset those impacts. As noted earlier, there has been no change to the wetland impacts or mitigation proposal as it relates to the Northern Preserve. See Findings of Fact 27 and 28, supra. As a result of the modified SWMS, there has been some additional impact to wetlands within the development area of the project. An additional 40.18 acres will be impacted under the 2006 Permit mostly due to the modified SWMS system. However, 39.5 acres of those wetlands were already considered secondarily impacted under the 2002 Permit. In addition, the preserve areas were expanded by 13.32 acres in the 2006 design. Thus, a portion of the impacts to those wetlands was already factored into the mitigation plan that was developed and approved for the 2002 Permit. As a result, there are 26 acres for which mitigation is necessary under the 2006 Permit. Section 4.3 of the BOR specifies criteria for mitigation proposed as part of an ERP application. Collier has proposed an acceptable mitigation plan for the new wetland impacts that will result from the project due to the proposed modifications incorporated in the 2006 Permit. Except for the mitigation for the additional wetland impacts, the mitigation plan for the 2006 Permit remains essentially unchanged from the 2002 Permit, including the Grading and Planting Plan, Monitoring Plan, and Mitigation, Monitoring, and Maintenance Plan. The onsite mitigation proposal includes preservation and restoration of wetlands through the removal of melaleuca and other exotic plants and replanting in areas of dense exotic species coverage. Significantly, Collier has not proposed any modifications that would change the effectiveness of the Northern Preserve in providing mitigation for the wetland impacts proposed and approved in the 2002 Permit. While Petitioners claim that the wetlands in the Northern Preserve may be subject to some changes in the level and seasonality of inundation as a result of the SWMS modifications, the evidence does not support those assertions. The revised SWMS will continue to allow water to flow through the Northern Preserve in a manner consistent with existing conditions while providing some flood control protection for extreme rainfall events. Petitioners also suggest that additional analysis regarding the timing and levels of inundation in the wetland preserves is necessary to fully determine the impacts of the modified SWMS on the wetlands. However, the more persuasive testimony indicates that the timing and levels within the wetlands will not be affected by the revised SWMS. The control elevations within the development area have not changed from the 2002 Permit, and these protect the onsite wetlands and ensure that those wetlands will function as expected. With respect to the internal wetlands within the development area, the control elevations have not changed from the 2002 Permit and the evidence establishes that the internal wetlands will continue to function and operate as contemplated in the 2002 Permit. There has been some relocation and reconfiguration of the internal wetland preserve areas that will actually enhance the value of the mitigation by connecting those wetland areas to other preserve areas. Petitioners further suggested that the wetland mitigation within the development area would not function as permitted in the 2002 Permit due to the spill over from the lakes to the wetlands. However, when the water reaches those internal wetland preserves, it has been treated to Class III water quality standards. Therefore, the mitigation values of those wetlands preserves will not be changed or affected due to water quality. Petitioners' objections to the wetland impacts and mitigation were primarily directed at the overall impacts rather than to the 2006 modifications. However, their witness was unaware of the values provided by the additional acres that will be impacted through the 2006 Permit. Therefore, a challenge to 2002 permitted wetlands impacts and mitigation is inappropriate in this proceeding. Functions To Fish and Wildlife and Listed Species Section 4.2.2 of the BOR implements Florida Administrative Code Rule 40E-4.301(1)(d) and provides that an applicant must provide reasonable assurances that a project will not cause adverse impact to the abundance and diversity of fish, wildlife, and listed species or their habitat. With respect to the 586.66 acres of wetland impacts permitted in the 2002 Permit, the 2006 Permit does not modify or affect the values that the wetlands provide to either the abundance or diversity of fish and wildlife. Review of the wetlands criteria as to those acres was finally determined in the 2002 Permit and should not be reopened. By relocating thirteen of the previously impacted acres so they are most closely connected to other wetlands, their value to fish and wildlife will increase. As explained by the District's witness Bain, if Collier had moved the preserve area and changed its functional value, the District would have been required to reevaluate the mitigation that had been accepted for the wetland impacts in the 2002 permit. In this case, however, because the Northern Preserve area did not change, the District's review is limited to the newly impacted wetlands internal to the development for which mitigation was not provided in the 2002 Permit. Section 4.2.2.3 of the BOR addresses the functional assessment of the values provided by the project's wetlands. The only wetland values assessed in the 2006 Permit were the additional wetland impacts that were not mitigated in the 2002 Permit. The evidence establishes that the current value of the wetlands is low due to the heavy melaleuca infestation, which is greater than fifty percent coverage in most locations and seventy-five percent or more in much of the area. Melaleuca has the effect of draining short hydroperiod wetlands. While Petitioners may disagree with how the wetlands were previously evaluated, nothing in the 2006 modification allows or requires a reassessment of their value. Section 4.2.2.4 of the BOR requires that a regulated activity not adversely impact the hydroperiod (the depth, duration, or frequency of inundation) of wetlands or other surface waters. Subsection (a) of this standard applies if the project is expected to reduce the hydroperiod in any of the project's wetlands. Conversely, subsection (b) applies if the project is expected to increase the hydroperiod through changing the rate or method of discharge of water to wetlands or other surface waters. Subsection (c) requires monitoring of the wetlands to determine the effects of the hydrological changes. Again, there is no basis for the District to reopen and reevaluate the wetlands for which mitigation has already been permitted. No evidence was presented to indicate that there would be any obstacles or problems to accomplishing the mitigation that was proposed and accepted in 2002. In any event, the engineering and biological testimony demonstrated that no change (neither a reduction nor an increase) in the hydrology on the preserved wetlands or the Northern Preserve will occur from what was permitted in the 2002 Permit. By analyzing the various biological indicators onsite and setting the control elevations within the SWMS and the wetlands (both the Northern Preserve and onsite preserve wetlands) above the WSWT, the project ensures that the appropriate hydrology will be maintained. Though the fish and wildlife are not expected to be adversely affected by the 2006 Permit, Collier will be conducting monitoring of plants and animals on the site as an extra measure of assurance as contemplated under BOR Section 4.2.3.4(c). Focusing on just the changes from 2002 to 2006, Petitioners' two experts conceded that the hydrology in the Northern Preserve and its value to wildlife and listed species (including the wood stork) would be benefited in the 2006 Permit over that contemplated in the 2002 Permit due to the removal of the Flow-Way. Secondary Impacts to Water Resources Florida Administrative Code Rule 40E-4.301(1)(f) requires a demonstration that the proposed activities "[w]ill not cause adverse secondary impacts to the water resources." A similar demonstration is required by Sections 4.1.1(f) and 4.2.7 of the BOR. In this case, the secondary impacts considered by the District were potential impacts due to the relocation and expansion of the buffer preserve areas to the perimeter of the project site. In conducting a secondary impact analysis, BOR Section 4.2.7 requires that the District consider only those future projects or activities which would not occur "but for" the proposed system. Here, the evidence demonstrated that no wetlands or other surface waters will be secondarily impacted by the modifications to the SWMS as part of the 2006 Permit. The undersigned has rejected Petitioners' contention that a proposed extension of County Road 951 through the development site should be considered a secondary impact in evaluating this project. This extension has been proposed for at least fifteen years and its precise configuration is unclear. It is not required to be built as a result of the project and there are no firm plans or contracts in place to construct the road. Although the road is listed on the County's transportation plan, it remains speculative as to if and when it will be built. Additionally, there is no evidence the County has any ownership interest in property for a road in the area identified by Petitioners. Witness Bain testified that the District examined the Collier County Public Records and an easement had not been granted to the County to build the road. i. Elimination and Reduction Florida Administrative Code Rule 40E-4.301((3) provides in part that "the provisions for elimination or reduction of impacts contained in the [BOR] shall determine whether the reasonable assurances required by subsection 40E- 4.301(1) and Rule 40E-4.302, F.A.C., have been provided." Section 4.2.1.1 of the BOR implements that provision and provides that elimination and reduction of impacts is not required when: The ecological value of the function provided by the area of wetland or other surface water to be adversely affected is low based on site specific analysis using the factors in subsection 4.2.2.3 and the proposed mitigation will provide greater long term ecological value than the area of wetland or other surface water to be adversely affected; . . . In accordance with that section, Collier was not required to implement practicable design modifications to reduce or eliminate impacts. The District did a site-specific analysis of the quality of the 39.5 acres of adversely affected wetlands, taking into consideration the condition of the wetlands, hydrologic connection, uniqueness, location, and fish and wildlife utilization. The unrebutted testimony is that the quality of the 39.5 acres of wetlands to be impacted by the 2006 Permit is low and these wetlands were already previously authorized to be secondarily impacted. The low quality wetlands are melaleuca dominated making them not unique. The mitigation will provide greater long-term ecological value than the impacted wetlands. As noted on page 10 of the Staff Report, there will be a larger, contiguous mitigation area to offset direct impacts to previously preserved, but secondarily impacted wetlands and the preservation/enhancement of the external preserve area. The 2006 Permit provides that 5.68 credits are required to be purchased in the PIMB. Collier has advised the District that 27.68 credits are being purchased pursuant to its Corps permit. Thus, Collier will be purchasing more credits than required by the District. Witness Bain took this additional mitigation into account in determining whether the proposed mitigation will provide greater long term ecological value than the area impacted. While the Corps permit is an entirely separate permit action, Collier has agreed to include an additional 5.68 credits within the Basin beyond what is required in the Staff Report as a condition to this 2006 Permit. Therefore, the mitigation is clearly of greater long-term ecological value than the area impacted. Additional Requirements Florida Administrative Code Rule 40E-4.302 imposes additional requirements on an ERP applicant, including a cumulative impact assessment, if appropriate, and satisfaction of a public interest test. Cumulative Impacts Florida Administrative Code Rule 40E-4.302(1)(b) requires that an applicant demonstrate the project "[w]ill not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 4.2.8 through 4.2.8.2 of the [BOR]." Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin, and a cumulative impact analysis is geographically based upon the drainage basins described in Figure 4.2.8-1 of the BOR. See Florida Wildlife Federation et al. v. South Florida Water Management District et al., 2006 Fla. ENV LEXIS 49 at *49, DOAH Case Nos. 04-3064 and 04-3084 (DOAH Dec. 3, 2006, SFWMD Dec. 8, 2006). Also, Section 373.414(8)(a), Florida Statutes, requires the District to consider the cumulative impacts upon surface water and wetlands within the same drainage basin. Thus, the cumulative impact analysis applies only when mitigation is proposed outside of the drainage basin within which the impacts are to occur. Broward County v. Weiss et al., 2002 Fla. ENV LEXIS 298 at *29, DOAH Case No. 01-3373 (DOAH Aug. 27, 2002, SFWMD Nov. 14, 2002). In this case, all of the proposed mitigation associated with the 2006 Permit modifications is located within the West Collier Basin. The evidence shows that the mitigation will offset the impacts to wetlands proposed in the 2006 Permit. Therefore, since the mitigation will be performed in the same Basin as the impacts and will offset the adverse impacts, the District must "consider the regulated activity to meet the cumulative impact requirements" of Section 373.414(8)(a), Florida Statutes. A new cumulative impacts analysis based on removal of the Flow-Way is not necessary because the modification does not change the cumulative impacts analysis conducted in the 2002 Permit. Since the Flow-Way was not considered a wetland impact or contributing to the mitigation in the 2002 Permit, its removal does not affect the adequacy of the previously conducted cumulative impacts analysis or the mitigation. Accordingly, there is no need for a new cumulative impact analysis with regards to the Northern Preserve. Finally, contrary to Petitioners' assertion, there is no rule or BOR provision which requires Collier to mitigate for the alleged prior impacts of other projects. Public Interest Test In addition to complying with the above criteria, because the project is located in, on, or over wetlands or other surface waters, Collier must also address the criteria contained in the Public Interest Test in Florida Administrative Code Rule 40E-4.302(1) and Section 4.2.3 of the BOR by demonstrating that the project is not contrary to the public interest. See also § 373.414(1)(a), Fla. Stat. Since the project does not discharge into an OFW or significantly degrade an OFW, the higher standard of "clearly in the public interest" does not apply. In determining compliance with the test, Florida Administrative Code Rule 40E-4.302(1)(a) requires that the District do so by "balancing the [seven] criteria [in the rule]." Findings with respect to each of the seven criteria are set out below. (Except for pointing out that the District does not have an adopted rule which provides more specific detail on how to perform the balancing test than is now found in paragraph (1)(a), and a contention that witness Bain's testimony was insufficient to explain how the staff balanced those factors, Petitioners did not present any evidence at hearing or argument in their Proposed Recommended Order in support of their contention that the above rule, BOR section, or the associated statute have been applied by the District in an unconstitutional manner.) Whether the regulated activity will adversely affect the public health, safety, or welfare or the property of others (40E-4.302(1)(a)1.) Collier provided reasonable assurances that the project will not cause any onsite or offsite flooding nor cause any adverse impacts to adjacent lands because the SWMS is designed in accordance with District criteria. Also, the post- development peak rate of discharge does not exceed the allowable discharge rate. Further, the project will not cause any environmental hazards affecting public health, safety, or welfare. The project is considered neutral as to this factor. Whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats (40E-4.302(1)(a)2.) For the direct wetland impacts under the 2006 Permit, Collier proposes mitigation which has not changed from the 2002 Permit. The mitigation proposed was previously determined to offset potential impacts to fish and wildlife and particularly wood stork habitats. The evidence indicates that the mitigation plan for the Northern Preserve will improve wood stork habitat from its current melaleuca infested condition. For the additional 40.18 acres of wetland impacts authorized in 2006, the mitigation is of greater long-term value. Thus, the project should be considered positive as to this factor. Whether the regulated activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling (40E-4.302(1)(a)3.) The parties have stipulated that the project will not adversely affect navigation. In addition, no evidence was introduced to suggest that the project's construction would result in harmful erosion or shoaling. Whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity (40E-4.302(1)(a)4.) The project does not provide any fishing, recreational values, or marine productivity. Therefore, the project is neutral as to this factor. Whether the regulated activity will be of a temporary or permanent nature (40E-4.302(1)(a)5.) It is undisputed that the project is permanent in nature. Even though the project is permanent, it is considered neutral as to this factor because mitigation will offset the permanent wetland impacts. Whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S. (40E- 4.302(1)(a)6.) The parties have stipulated that no significant archeological or historical resources have been identified on this site. Therefore, the project is considered neutral as to this factor. The current condition and relative value of functions being performed by areas affected by the proposed regulated activity (40E-4.302(1)(a)7.) The current condition and relative value of functions being performed by the areas affected by the project is low due to the melaleuca infestation. Project mitigation will restore 940 acres of poor quality wetlands and uplands, greatly enhancing their function and value. Therefore, the project should be considered positive as to this factor because the implementation of the mitigation offsets the wetland impacts and improves the current value. Summary of Public Interest Factors Overall, the project is no worse than neutral measured against any one of the criteria individually. Therefore, the project is not contrary to the public interest.
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 granting the application of I. M. Collier, J.V. for a modification to Environmental Resource Permit No. 11-02031P. DONE AND ENTERED this 24th day of July, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2007.
